PREVENTION OF

ILLEGAL WORKING
IMMIGRATION, ASYLUM AND NATIONALITY ACT 2006

COMPREHENSIVE GUIDANCE FOR EMPLOYERS ON PREVENTING

ILLEGAL WORKING

FEBRUARY 2008
CONTENTS

INTRODUCTION.......................................................................................................... 4

THE LAW FOR EMPLOYERS ON PREVENTING ILLEGAL WORKING................................... 5

HOW TO CHECK THAT SOMEONE IS ENTITLED TO WORK IN THE UK.............................. 8

THE PENALTY FOR EMPLOYING AN ILLEGAL WORKER................................................. 11

HOW TO AVOID RACIAL DISCRIMINATION WHEN PREVENTING ILLEGAL WORKING........ 12

THE EMPLOYERS’ HELPLINE..................................................................................... 13

WHAT LEVEL OF CIVIL PENALTY MIGHT I HAVE TO PAY?............................................... 14

APPEALS AND OBJECTIONS TO THE CIVIL PENALTY.................................................... 16

FURTHER INFORMATION........................................................................................... 18

LIST A DOCUMENTS WHICH PROVIDE AN ONGOING EXCUSE................................................ 21

LIST B DOCUMENTS WHICH PROVIDE AN EXCUSE FOR UP TO 12 MONTHS........................... 31

APPENDIX A SOME QUESTIONS YOU MIGHT HAVE........................................................................ 40

APPENDIX B EMPLOYING NATIONALS FROM THE EUROPEAN ECONOMIC AREA............................... 61

APPENDIX C GUIDE TO UK GOVERNMENT STAMPS AND ENDORSEMENTS...................................... 67

APPENDIX D FRAMEWORK FOR ASSESSMENT OF LEVEL OF CIVIL PENALTY.................................... 74

APPENDIX E FLOWCHARTS FOR CARRYING OUT DOCUMENT CHECKS............................................ 75

TERMS AND ABBREVIATIONS.................................................................................... 78

Produced by Border and Immigration Agency Communications Directorate

© Crown copyright February 2008
 COMPREHENSIVE GUIDANCE FOR UNITED KINGDOM
EMPLOYERS ON PREVENTING ILLEGAL MIGRANT WORKING
IN THE UK

The aim of this guidance is to help United Kingdom

employers understand the law on preventing illegal
working from 29 February 2008. It includes details of
the document checks that employers are advised to
undertake and provides images of a selection of the
documents that may be presented.

This booklet has been produced by the Border and

Immigration Agency and contains comprehensive
information and best practice advice for employers.
It is intended to be a particularly useful reference
tool for human resources staff who are likely to be
involved in the recruitment and retention of staff.

The information contained in this document was

correct at the time of publication, but may be subject
to revision.

For current information, please visit

www.bia.homeoffice.gov.uk/employingmigrants


 Introduction

Our 2007 Enforcement Strategy, Enforcing the rules: A

strategy to ensure and enforce compliance with our immigration
laws, sets out the damaging social and economic
consequences illegal working1 has for the United
Kingdom.

There is evidence that some of those who are

working illegally are paid less than the minimum
wage, do not pay tax, and may be doing dangerous
work that breaks health and safety regulations.
Employers who employ illegal migrant workers may
do so because they want to avoid providing minimum
standards, such as the National Minimum Wage and
paid holidays. This is harmful to the workers involved
and enables unscrupulous employers to gain an unfair
advantage over legitimate competitors.

We want to work together with employers to ensure

that illegal workers cannot obtain work in the UK.
We will also continue to take tough action against
those employers who seek to profit from exploiting
illegal labour.

1
In this context illegal working refers to migrants who are in the United Kingdom illegally and working, or migrants who are here
lawfully, but working in breach of their conditions of stay.


 THE LAW FOR EMPLOYERS ON PREVENTING ILLEGAL
WORKING
As an employer, you have a responsibility to prevent
illegal migrant working in the UK.
As part of our ongoing strategy to improve the way
we tackle illegal working, the Government changed
the law on employing illegal workers in 2008. These
legislative changes were discussed extensively with
the Illegal Working Group,2 and the Government also
carried out a full public consultation exercise on its
proposals from May to August 2007.
The new law on the prevention of illegal migrant
working is set out in sections 15-25 of the
Immigration, Asylum and Nationality Act 2006
(referred to in this guidance as the ‘2006 Act’). These
provisions came into force on 29 February 2008.
They replace the previous offence under section 8 of
the Asylum and Immigration Act 1996 (referred to in
this guidance as the ‘1996 Act’).3
The changes were made for three key reasons:
• to make it more difficult for people who overstay
their permission to be in the UK and/or lose their
entitlement to work, to remain in employment in
breach of the UK’s immigration laws;
• to make it easier for you to ensure that you employ
people who are legally permitted to work for you;
and
• to strengthen the Government’s controls on
tackling illegal working by making it easier for the
Border and Immigration Agency to take action
against employers who use illegal labour.
These changes do not make a major difference to the
type of documents you are advised to check. They
have been drawn up so that people who do have the
right to work in this country, including those from
minority ethnic communities, can demonstrate their
entitlement quickly and easily.
2
The Illegal Working Group is chaired by a senior Home Office minister. It comprises senior representatives from a range
of business sectors, and also has members from the Trades Union Congress, the Confederation of British Industries, the
Commission for Equality and Human Rights, and the Health and Safety Executive.
3
As amended by section 22 of the Immigration and Asylum Act 1999, section 147 of the Nationality, Immigration and Asylum Act
2002 and section 6 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

The Government is working towards the
development of secure identity cards for foreign
nationals to help employers check identity and
entitlement to work. We will simplify the list of
specified documents employers can accept and
progressively replace paper-based documents with
secure cards as these are rolled out.
How did the law change for employers on
29 February 2008?
From 29 February 2008, you may be liable to pay a
civil penalty if you employ someone who is:
• subject to immigration control;
• aged over 16; and
• not entitled to undertake the work in question.
Civil penalties can be up to £10,000 per illegal
worker. A notice of liability to pay a civil penalty
of a specific amount can be served by Border and
Immigration Agency officials on behalf of the
Secretary of State.
Civil penalties are calculated on a sliding scale. The
final amount that the employer is required to pay
will be determined by officials on an individual basis,
according to the circumstances of the case. A Code
of practice setting out the factors under which the
penalty will be determined has been produced (see
page 18 for details of the civil penalties Code of
practice).
Under the new law, you will have an excuse against
liability to pay a civil penalty for employing an illegal
migrant if you check and copy certain original
documents before someone starts working for you.
If the person has a time limit on their stay in the UK,
you will also have to carry out repeat checks on their
documents at least once a year to have the excuse.
 However, if you know that you are employing a
person who is not permitted to work, then you will
not have an excuse and you could be prosecuted for
knowingly employing an illegal worker4, regardless of
whether you have carried out any document checks.
Conviction under this offence could lead to an
unlimited fine and/or a prison sentence of up to two
years.
Appendix A contains questions and answers about
the law on preventing illegal working.
You may be aware that a number of countries have
joined the European Union on or since 1 May 2004.
The Government imposed a registration scheme
on nationals from eight5 of these countries and a
requirement for authorisation to work for another
two.6 Appendix B gives you details about what you
should do if you wish to employ a national from
these countries.
Appendix C has details of UK Government stamps
and endorsements which demonstrate a person’s
immigration status.
Appendix D contains a framework designed to
assist the Border and Immigration Agency with the
assessment of whether to issue a penalty notice to
an employer, and if so, at what level. The framework
provides a sliding scale with minimum and maximum
penalties. The framework is provided for guidance
purposes only, as the actual amount will be decided
on a case by case basis.
Appendix E provides examples of some documents
that employees may produce to you and the action
that you should take when presented with those
documents.
THE POINTS BASED SYSTEM
In 2008, a points-based system, similar to that
operating in Australia, began to operate in the United
Kingdom. This enables the United Kingdom to
4
Under Section 21 of the 2006 Act.
5
These eight countries are: Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia.
6
The two countries are Romania and Bulgaria.

control migration more effectively, tackle abuse and
identify the most talented workers.
The key elements of the system include:
• consolidating more than 80 existing work and study
application routes into five tiers; and
• awarding points to reflect criteria which are linked
to success in the labour market, for example salary
level and qualifications and also the level of need in
any given sector, to allow the United Kingdom to
respond flexibly to changes in the labour market.
The Points Based System will enable us to plug skill
gaps quickly by attracting the right people into the
labour market. The application process will be faster
and simpler than before, leading to greater efficiency
and better customer service and satisfaction.
Employers will be able to attract skilled migrants
where there are skill gaps in the domestic labour
force. They will be able to respond quickly and
flexibly to meet changes in the labour market.
Employers will be able to understand the conditions
attached to a migrant’s period of leave as their
vignettes will clearly display their validity.
On 29 February 2008 new sponsor licensing
arrangements were introduced for organisations
wishing to sponsor migrants for visa applications
under the new points based system. Under the new
points based system, employers, and others who
benefit from migration and wish to act as sponsors
of skilled or temporary migrants, need a licence to
do so. To earn and hold a licence they must satisfy
the Border and Immigration Agency that they are
trustworthy, and must agree to fulfil certain duties.
Since 29 February 2008 employers wishing to sponsor
skilled workers under the points based system have been
able to apply for a sponsor licence. Other prospective
sponsors, including educational institutions, will be able
to apply for a licence from the summer of 2008.
 Sponsors will be expected to tell us if a sponsored
migrant fails to turn up for their first day of work,
or does not enrol on their course. They will similarly
be expected to report any discontinuation of studies,
or if the contract is terminated, the migrant is
leaving their employment, or is changing educational
institution.
There will be increased focus on compliance in
the United Kingdom and more responsibilities
for sponsors whose compliance will be checked
through our sponsor management structure. Sponsor
management teams will be regionally and sector-
based and will provide help and guidance to sponsors
in discharging their responsibilities. Where there are
concerns, compliance officers will be directed to
make robust checks. Breaches of the rules may lead
to a sponsors’ rating being downgraded from A to B
(all sponsors will be given an A or B rating.) Serious
breaches may lead to sponsors losing their licence
and prevented from employing migrant workers from
abroad.
Where a licensed sponsor is convicted of knowingly
employing illegal migrant workers, it will be likely to
lose its licence altogether.
Further details
You can find further details of the Points Based
System on the Border and Immigration Agency
website at
www.bia.homeoffice.gov.uk/employingmigrants
For more details of the sponsor licensing system,
please see our document “Sponsorship under
the Points-Based System: licensing guidance”
available on the Border and Immigration Agency
website via:
www.bia.homeoffice.gov.uk/managingborders/
managingmigration/apointsbasedsystem/

Sponsorship and the illegal working

provisions

Licensed sponsors, and organisations that are

applying for licences, will be subject to inspection by
the Border and Immigration Agency. If, as a result
of these inspections, applicants are found to be
employing illegal workers, they may be issued with a
civil penalty, or prosecuted, in accordance with the
provisions described in this booklet.

Where a licensed sponsor is issued with a civil

penalty, one of two things will happen:

• If the penalty is set at the maximum level, the

sponsor will lose its licence and will not be able to
get a new one for at least six months;

• If the penalty is set at any other level, the sponsor

will be downgraded to a B-rating and set an Action
Plan. If it receives further civil penalties (below
the maximum level) while it is B-rated, we may
decide that it is not complying with its Action Plan,
in which case it will be likely to lose its licence
altogether.


 HOW TO CHECK THAT SOMEONE IS ENTITLED TO WORK IN
THE UK
This section explains the checks you should carry out
in order to establish an excuse against liability to pay a
civil penalty for employing an illegal migrant worker.
You will only have the excuse if you check and copy
the documents before the person starts working for
you.
If the person has time-limited leave to be in the UK,
you will only have the excuse if you carry out certain
repeat checks at least once every 12 months.
It is important to note when reading this guidance
that you will not have an excuse if you knowingly
employ an illegal migrant worker, regardless of
any document checks you undertake before or
during their employment.
This guidance will help you recognise and understand
what documents your prospective or existing
employees must provide for you to inspect and copy
if you wish to ensure that they can work for you
legally. It explains how to satisfy yourself that any
documents are genuine, belong to the holder and
demonstrate an entitlement to work in the UK. It
also explains how and when you should repeat these
checks for people who have limits on their time in the
UK.
Documents which show a person’s
entitlement to work
The documents that establish someone’s entitlement
to work are split into two lists.
List A documents show that the holder is not subject
to immigration control, or has no restrictions on
their stay in the UK. If your prospective or existing
employee produces a List A document (or one of
the combinations of documents specified), they can
work for you for an indefinite period. When you have
carried out the appropriate checks on their List A
documents you will have an excuse against liability to
pay a civil penalty.
List B documents demonstrate that the person has
been granted leave to enter or remain in the UK for
a limited period of time. If an individual provides

documents from List B, you should carry out
specified document checks before the employment
of the individual begins and then carry out follow-
up checks of the same kind at least once every 12
months. You must carry out these repeat checks
to have an excuse against liability to pay a civil
penalty whenever List B documents are provided.
If, when rechecking the documents, an employee
provides a document or documents from List A,
no further checks are necessary for the duration of
that employment. Please refer to ‘carrying out repeat
checks’ below for more details on what repeat checks
are required and when.
These new arrangements for establishing the excuse
only apply to employees who started working for
you on or after 29 February 2008. If you employed
illegal migrants between 27 January 1997 and 28
February 2008, you may be liable for prosecution
under the 1996 Act. Please refer to page 18 for
information about workers employed under previous
legislation.
If you employ an illegal migrant, you will place
your business at risk of losing any benefit from
the time and money you have spent in training
that person.
Complying with the document checks
You should follow Steps 1 – 3 for every individual
whom you intend to employ from 29 February 2008
onwards. By doing this, you will be sure that your
recruitment practices will comply with the new law
on employing migrant workers, and you will not be
liable for payment of a civil penalty for employing a
person illegally.
Please note, with regard to the references to the
provision of a properly documented, permanent
National Insurance number in Lists A and B, that
the provision of a National Insurance number
in isolation is not sufficient for the purposes of
having an excuse. The National Insurance number
can only be used for this purpose when presented in
combination with one of the appropriate documents,
as specified in Lists A and B.
 Step 1
Your prospective employee (or existing employee, if
you are carrying out repeat checks) must provide to you:
EITHER
• one of the single documents, or two of the
documents in the specified combinations given,
from List A;
OR
• one of the single documents, or two of the
documents in the specified combinations given,
from List B.
You should only accept original documents.
Details of the documents included in List A and List
B are at pages 21-39.
Step 2
You must take all reasonable steps to check that
the document is valid and satisfy yourself that your
prospective employee or current employee is the
person named in the document, and check that the
documents allow them to do the work in question.
For each document presented, you should:
• check that the expiry dates of any limited leave to
enter or remain in the UK have not passed; and
• check any UK Government endorsements (stamps,
visas, etc.) to see if your prospective or current
employee is able to do the type of work you are
offering; and
• satisfy yourself that the documents are valid and
genuine, have not been tampered with and belong
to the holder; and
• if your employee gives you two documents which
have different names, ask them for a further
document to explain the reason for this. The
further document could be a marriage certificate, a
divorce decree, a deed poll or statutory declaration.
Step 3
You must make a copy of the relevant page or pages
of the document, in a format which cannot be
subsequently altered, for example, a photocopy or scan.7
In the case of a passport or other travel document, the
following parts must be photocopied or scanned:
• the document’s front cover and any page containing
the holder’s personal details. In particular, you
should copy any page that provides details of
nationality, his or her photograph, date of birth,
signature, date of expiry or biometric details; and

• check any photographs are consistent with the
appearance of the employee (this means you must
see them in person); and
• check any dates of birth listed are consistent across
documents and that you are satisfied that these
correspond with the appearance of the employee;
and
• any page containing UK Government
endorsements indicating that the holder has an
entitlement to be in the UK and is entitled to
undertake the work in question.
Other documents should be copied in their entirety.
You should then keep a record of every document you
have copied.8 The copies of the documents should

Where an electronic copy is made of a document, it must be made using a non-rewritable format, such as CD-R.
7

It is not appropriate to retain a person’s original documents, except for the purpose of copying them. The only exceptions to this are:
8

• when an individual provides part 2 of a P45 as part of a combination of documents; or

• when someone is employed for a day or less and it is not practicable to obtain a copy of the documents. The employer must also have
facilities for keeping the documents safe. A job applicant’s original documents must not be kept for longer than a day. If an employer
deliberately appropriates a person’s passport or other original documents belonging to them, or retain these without their consent, then
they may be guilty of an offence under the Theft Act 1968, or since 7 June 2006, under section 25(5) of the Identity Cards Act 2006.


 be kept securely for the duration of the person’s
employment and for a further two years after they
stop working for you. By doing this, the Border and
Immigration Agency will be able to check whether you
have complied with the law or are liable to pay a civil
penalty if they detect anyone working illegally for you.
What to do if the prospective employee is
not entitled to work
If you have carried out these checks and establish
that your prospective employee is not permitted to
work, then you are entitled to refuse employment to
that person. It is up to your prospective employee to
demonstrate to you that he or she is permitted to do
the work you are offering.
Carrying out repeat checks
If the employee presents a document from List B,
you must carry out follow-up checks by repeating
steps 1 to 3 at least once every 12 months, to have
the excuse. You should record the date on which the
check was made.
What should I do if I complete a repeat
check and find that an employee is no
longer able to work here?
It is ultimately up to each employer to make the
decision on whether or not to employ someone, or
to continue to employ them. If you have carried
out repeat checks and establish that your existing
employee is no longer permitted to work in the UK,
then you will become liable for a civil penalty, and
are committing a criminal offence of knowingly
employing an illegal worker. Equally, an employee will
be committing an offence by working illegally.
Current UK law provides that where continued
employment would break the law, employers may be
able to form grounds for dismissal.
You may also wish to seek legal advice and report the
individual to the Border and Immigration Agency.

If you retain an employee with a List B document or

documents and have not made the required follow-
up checks required in order to have the excuse, then
you may be liable for payment of a civil penalty if
that person is found to be working illegally in the UK
after the excuse time expired.

What should I do if an employee refuses

to produce documents to establish their
ongoing entitlement to work in the UK?

Each case will be dependent upon the terms of the

employment contract. In the absence of a specific
condition in the employment contract stating that
the employee is obliged to provide valid specified
documents to you establishing that he or she is
permitted to do the work you are offering, it may be
possible for an employer to form grounds for dismissal.

You may also wish to seek legal advice and report the
individual to the Border and Immigration Agency.

10
 THE PENALTY FOR EMPLOYING AN ILLEGAL WORKER
There is a sliding scale of penalties, which are
principally determined by the number of times an
employer has been found to be employing illegal
migrants. Appendix D provides a framework
designed to assist Border and Immigration Agency
officials with their assessment of whether to issue a
civil penalty to an employer, and if so, at what level.
The level of penalty to be imposed per illegal worker
may be increased or reduced according to different
criteria. For example, the penalty can be increased
according to the number of times you are found with
illegal migrants in your workforce and have failed
to establish an excuse. A Code of practice has been
produced to provide further information (see page 18
for details of the civil penalties Code of practice).
If you know that a person who is working for you
is not permitted to do the job in question, then you
will not have an excuse against liability to pay a civil
penalty, regardless of whether you have carried out
document checks, and could face a civil penalty
or, in more serious cases, prosecution. This allows
the Border and Immigration Agency to tackle the
minority of employers who deliberately employ illegal
workers and use false or forged documents to obtain
a false excuse.
The offence of knowingly employing an
illegal migrant
Under section 21 of the 2006 Act, an employer may
commit a criminal offence if he or she knowingly
employs an illegal migrant. On summary conviction,
the maximum penalty an employer may be given
will be a fine of no more than the statutory
maximum9 for each person employed illegally, and/
or imprisonment for up to 6 months.10 Following
conviction on indictment, there is no upper limit
to the level of fine that can be imposed, and the
employer may also be subject to imprisonment for up
to two years.
9
The current statutory maximum is £5,000.
10
This will increase to 12 months in England and Wales with the commencement of the relevant provisions of the Criminal Justice
Act 2003 (remaining at 6 months in Scotland and Northern Ireland).
11
The Border and Immigration Agency carries out
regular operations to target illegal working all over the
country and will investigate allegations by adopting
an intelligence-led approach. The Agency adapts
resources where appropriate to carry out specific
operations that will yield the greatest results, with the
aim of removing the most harmful people from the
UK first. Any person found to be working illegally is
liable to prosecution and/or removal from the UK
Reasonably apparent
If you are presented with a false travel document or
visa, you will only be required to pay a civil penalty
if the falsity is reasonably apparent. The falsity
would be considered to be ‘reasonably apparent’ if
an individual who is untrained in the identification
of false documents, examining it carefully, but
briefly and without the use of technological aids,
could reasonably be expected to realise that the
document in question is not genuine. Equally, where
a prospective employee presents a document and it
is reasonably apparent that the person presenting
the document is not the person referred to in that
document, then you may also be subject to legal
action, even if the document itself is genuine.
If the falsity is not reasonably apparent, or a valid
document is presented by the named person, then
you can expect not to be liable to pay a civil penalty.
However, you will not have an excuse against liability
if you knew that the document, or documents, were
false or did not rightfully belong to the holder.
 HOW TO AVOID RACIAL DISCRIMINATION WHEN PREVENTING
ILLEGAL WORKING

It is important that you remember that many people
from minority ethnic groups who live in the UK are
British citizens. The Government has issued a Code
of practice to help employers comply with the law
and undertake the checks without discriminating
against individuals on the basis of their race. You can
download a copy from the Border and Immigration
Agency website:
www.bia.homeoffice.gov.uk/employingmigrants
If you do discriminate against someone on racial
grounds and go against the Code of practice, then
this may be used as evidence against you under race
relations legislation before an employment tribunal.
You should not employ anyone on the basis of their
claim to be British, or if you think they appear to be
British. The best way to make sure that you do not
discriminate in your recruitment practices is to treat
all job applicants in the same way.
Ensuring your document checks do not
discriminate
The best way to make sure that you do not
discriminate is to treat all job applicants in the same
way at each stage of your recruitment process.
You should ask all prospective employees to present
their documents before they begin working for
you. You should not make presumptions about a
person’s right to work in the UK on the basis of their
background, appearance or accent.
If you need further advice on preventing
discrimination in your recruitment checks, you should
consult your nearest office of the Equality and
Human Rights Commission (EHRC), also known as
the Commission for Equality and Human Rights,11
for advice.

Whilst some smaller organisations may wish to adapt
the guidance to suit their particular circumstances, it
should be noted that no allowances can be made for
smaller companies when considering their liability
under the law.
The EHRC published a Code of practice on racial
equality in employment that came into force on
6 April 2006. Contact details for the EHRC are
provided on page 20.

We recommend that smaller organisations ensure that

their employment practices do not discriminate on
grounds of race and that they follow the advice given
in the Code of practice.

If you operate discriminatory recruitment

processes, you could face prosecution under
race relations legislation and an unlimited fine
if you are found guilty. You will also place yourself
at risk of liability for payment of a civil penalty for
employing an illegal worker, as you may not have an
excuse in respect of all of your employees.

11
The successor to the Commission for Racial Equality (CRE).

12
 THE EMPLOYERS’ HELPLINE
If you require any further information about what
you have read in this guidance, you should call the:
Employers’ Helpline on 0845 010 6677
The Helpline is open Monday to Friday, between
9am and 5pm, except on bank holidays. It offers the
following dedicated service for employers:
• answers any general enquiries you may have on
preventing illegal working;
• general advice about the Worker Registration
Scheme for workers from the European Union
countries;
• general advice about the authorisation scheme for
Romanian and Bulgarian nationals;
The Employers’ Helpline cannot provide
you with employment advice: they can only
provide general advice about the laws relating
to the prevention of illegal working. If you have
questions relating to employment law, you may wish
to seek legal advice.
Allegations
You may also report any suspicions about your
employees’ entitlement to work in the UK or to
undertake the work in question to the Employers’
Helpline. If this information is reported to the
Employers’ Helpline before any immigration visit is
made by the Border and Immigration Agency, a sum
may be deducted from the amount of penalty due for
each worker. When reporting, you will be given a call
reference and this must be referred to when applying
for a reduction in penalty.
13
The Employer Checking Service
As an employer, you may be presented with documents
that require verification by the Employer Checking
Service to have the excuse. In some cases, employees’
documents will be with the Border and Immigration
Agency in connection with an outstanding application
or appeal. You may contact the Employer Checking
Service for information on certain documents issued
by the Border and Immigration Agency, which are
currently the Application Registration Card, or a
Certificate of Application.
The service is delivered via a process where an
employer is required to complete a form to enable
the Border and Immigration Agency to verify any
entitlement to work. Information on the range of
checks available through the Employer Checking
Service can be found on the Border and Immigration
Agency website at
www.bia.homeoffice.gov.uk/employingmigrants
For all checks through the Employer Checking
Service, it is the employers’ responsibility to inform
the prospective employee that they may undertake
a check on them with the Border and Immigration
Agency. To have an excuse against payment of a
civil penalty, the records and documents relating to
the check should be retained for examination and
submitted to officials upon request.
If you have questions relating to employment law,
you may wish to seek legal advice.
 WHAT LEVEL OF CIVIL PENALTY MIGHT I HAVE TO PAY?
There is a sliding scale of penalties, which are
principally determined by the number of times an
employer has been found to be employing illegal
migrants within a three year period. Appendix D
provides a framework designed to assist the Border
and Immigration Agency with the assessment on
whether to issue a civil penalty to an employer,
and if so, at what level. The framework will also be
used by the Border and Immigration Agency when
determining an objection to the payment of a civil
penalty.
The level of penalty to be imposed per worker
depends on a number of factors, for example, the
penalty may be higher if you have employed illegal
migrant workers and failed to check their entitlement
to work more than once. Whether you have
established a full or partial excuse against liability to
pay a civil penalty may also affect the level of penalty
payable.
The nature of checks conducted
The system of civil penalties is designed to encourage
employers to comply with their legal obligations,
without criminalising those who are less than diligent
in operating their recruitment and employment
practices. Under the 2006 Act, an employer may
have an excuse against liability for payment of a civil
penalty by checking and copying original documents
presented by a prospective or existing employee.
Details of what documents are acceptable are
provided on pages 21-39.
In all cases, you must undertake these steps before a
person begins employment to have the excuse and,
where a document or documents from List B are
provided, you must also carry out a follow-up check
at least once every 12 months after the initial check
to have the excuse.
If you are presented with a false travel document or
visa, you will only be subject to legal action if it is
reasonably apparent that the document is false, or
if you knew that the document, or documents, were
false and/or did not rightfully belong to the holder.
14
Full and partial checks
A full check shall be considered to have been carried
out where you can provide copies of the specified
documents, as described on pages 21-39, for all
relevant employees and the official is satisfied that
the specified steps were taken when checking these
documents. If you have carried out a full check then
you will have an excuse against liability and will not
have to pay a civil penalty, even if illegal migrant
workers are found to be working for you.
You will not have an excuse against liability to pay
a civil penalty if you knew that the employee was
not permitted to do the work in question, regardless
of what document checks you have carried out, and
may receive a penalty or be prosecuted for a criminal
offence. The Border and Immigration Agency will
pursue the prosecution of any employer where there
is sufficient evidence available and where prosecution
is in the public interest.
Where only a partial check has been carried out
for migrant workers who are found to be working
illegally, the employer may be subject to a civil
penalty.
A partial check shall be considered to have been
conducted where, for example, you have only checked
and copied one of a specified combination of two
original documents from List A or List B, or failed
to conduct a follow-up check on a worker with time
limited leave to be in the UK, after having conducted
a full document check at the point of recruitment. If
you have only carried out a partial check, you may be
liable to pay a civil penalty if illegal migrant workers
are found to be working for you.
If you cannot provide a record of having conducted
the prescribed document checks prior to the
employment commencing, or you have accepted a
document which it is reasonably apparent does not
belong to the holder, is false or shows that the person
does not have a current entitlement to work for you,
you shall be considered to have conducted no check
for the purpose of imposing a penalty.
 Where no check has been conducted, you may be
liable to pay a civil penalty if illegal migrant workers
are found to be working for you, and the penalty due
for each worker will not be reduced on the basis of
checks made.
In each case, it is for you to demonstrate that you
have checked your employees’ entitlement to work.
Reporting suspected illegal workers to
the Border and Immigration Agency
• You have reported suspected illegal workers; and
• There is no evidence of deliberate wrong doing by
you; and
• You have co-operated with the Border and
Immigration Agency.
Where you have an excuse and did not knowingly
employ an illegal worker, you will receive no penalty
or warning in respect of that worker.

If you report any suspicions about your employees’ Previous offences

entitlement to work for you to the Border and
Immigration Agency, a sum may be deducted from
the amount of penalty due for those workers.
This information must have been reported to the
Employers’ Helpline on 0845 010 6677 before any
immigration visit is made known to the employer
by the Border and Immigration Agency. When
reporting, you will be given a call reference and this
must be referred to when applying a reduction in
penalty.
Co-operation with the Border and
Immigration Agency in conducting an
illegal working operation
The penalty due for each worker can also be reduced
where you have co-operated with the Border and
Immigration Agency in any investigation, or in any
consequent operation to detect and detain illegal
migrant workers within your workforce. This may
include, for example, providing access to employment
records and/or premises to Border and Immigration
Agency officials on request.
When considering whether a higher level of penalty
should apply to an employer who has been visited
and found to have employed illegal migrants before,
previous penalties or warnings will not be considered
if they were issued more than three years before
the date of the new penalty. Where an employer is
revisited, and has received a penalty or warning within
three years of the current penalty, those penalties and
warnings will be counted in calculating the level of
the current penalty.
Multiple premises
A company with multiple premises where recruitment
is devolved to each site will not be liable to a
cumulative penalty if illegal workers are detected
at different sites, unless this can be attributed to
a general failure in the company’s centrally set
recruitment practices.

The level of any reduction made will depend on

whether you have been found to be employing illegal
migrant workers within the previous three years. The
sliding scale also allows for a warning letter to be
issued instead of a civil penalty in cases where:
• It is the first occasion on which you are found with
illegal migrant workers in your workforce; and

• You have conducted partial checks on the workers;

and

15
 APPEALS AND OBJECTIONS TO THE CIVIL PENALTY
If you are found with illegal workers in your
workforce, you may be served with a notification of
potential liability for a civil penalty, but a decision
on whether a penalty is appropriate and, if so, how
much it should be, will not be taken immediately.
The details of each case will be passed to the
Illegal Working Civil Penalty Unit (IWCPU) for
consideration and there are a number of factors that
will need to be considered before the level of any
penalty is decided. The IWCPU will subsequently
notify you of any action to be taken.
If the IWCPU decides that there is no action to be
taken, you will be sent written notification of this
decision and no further action will be taken. The
case will then be closed. However, if it is decided
that you are liable to a penalty, you will be advised
by the service of a ‘Notice of Liability for a Civil
Penalty,’ which will be your first formal notification
that a penalty is to be levied. This notice will state:
• why you are liable;
• the amount payable;
• when it must be paid by;
• how the penalty must be paid;
• how you may object to the penalty; and
• how the penalty may be enforced.
If you receive a notice of liability, this will indicate
that the IWCPU has decided that a civil penalty
under section 15 of the 2006 Act should be pursued.
The unit will have had an opportunity to examine
the case in detail and will have taken account of
all the apparent issues, how many previous illegal
working visits had been made to that employer in the
past three years, whether you had an excuse for the
employees, or whether there were any exceptional
circumstances to be considered.
Objections
On receipt of the notice of liability, you will have 28
days from the specified date to pay the penalty or
16
make an objection to the IWCPU at the following
address:
5th Floor 4M Building
Manchester Airport
Manchester
M90 3RR
The objection must be in writing, give the reasons for
the objection and be provided to the IWCPU within
28 days of the specified date.
A short extension may be approved for the
submission of your objection, provided that you
contact the IWCPU promptly and you can show
reasonable cause for the delay. Any objections
received after the 28 day period (without prior
agreement by the IWCPU) will not be considered.
Your objection should give clear reasons why you
consider that you are not liable to a penalty. You may,
for example, disagree that the falsity of a document
was reasonably apparent, that you had an excuse for
that employee, or you can object on the grounds
that the level of penalty is too high. Whatever your
reasons, the IWCPU will be prepared to look at the
case again in the light of what you have to say.
If you believe that the amount of a penalty issued is
too high, you can raise this as an objection, or as part
of an objection, to the IWCPU. The unit may consider
any additional evidence provided of an employer’s
financial means, including evidence in respect of
the effect of the civil penalty on the viability of the
employer’s business, in determining the objection.
Your objection should also indicate whether you have
lodged an appeal. However, we expect that you will
first exercise your right of objection and await the
outcome before exercising your right to appeal.
Appeals
If a penalty notice is issued to an employer, he or she
can appeal to the courts on the grounds that:
• he or she is not liable to the imposition of the
penalty; or
 • he or she is excused payment, having complied with
the required document checks; or

• the level of penalty is too high.

After a penalty notice has been issued, an employer

can appeal to the courts within 28 days using these
grounds. The Secretary of State may consider
any factors presented, in addition to any evidence
provided by the employer to support their claim, and
may adjust or cancel the penalty accordingly.

17
 FURTHER INFORMATION
Publications by the Home Office and the Border
and Immigration Agency
• Prevention of illegal working: Guidance for employers:
Asylum and Immigration Act 1996, Section 8 – Home
Office, 1996.
• The Immigration and Asylum Act 1999 - Section 22
Code of Practice: For all employers on the avoidance of
race discrimination in recruitment practice while seeking to
prevent illegal working – Home Office, 2001.
• Prevention of illegal working: Proposed changes to document
list under section 8 of the Asylum and Immigration Act
1996 – Home Office, 2003.
• Breakdown summary and statistical analysis of responses
to the consultation on proposed changes to document list
under section 8 of the Asylum and Immigration Act 1996
– Home Office, 2004.
• Changes to the law on preventing illegal working: short
guidance for United Kingdom employers – Home Office,
2004.
• Comprehensive guidance for United Kingdom employers on
changes to the law on preventing illegal working – Home
Office, 2004.
• Illegal working taskforce: Regulatory Impact Assessment
for Immigration, Asylum and Nationality Bill – Home
Office, 2005.
• Prevention of illegal working. Immigration, Asylum and
Nationality Act 2006: Consultation on the implementation
of new powers to prevent illegal migrant working in the UK
– Border and Immigration Agency, 2007.
• Shutting down illegal working in the UK. Illegal working
action plan update and next steps of the consultation
on the implementation of new powers to prevent illegal
migrant working in the UK – Border and Immigration
Agency, 2007.
• Prevention of illegal working. Immigration, Asylum and
Nationality Act 2006: Civil Penalties for Employers Code
of Practice – Border and Immigration Agency, 2008.
18
• Prevention of illegal working. Immigration, Asylum and
Nationality Act 2006: Guidance for Employers on the
avoidance of unlawful discrimination in employment practice
while seeking to prevent illegal working. Code of Practice
– Border and Immigration Agency, 2008.
• Prevention of illegal working. Immigration, Asylum and
Nationality Act 2006: Summary guidance for employers
– Border and Immigration Agency, 2008.
Documents provided by the Home Office and the
Border and Immigration Agency are available from
the Border and Immigration Agency website at:
www.bia.homeoffice.gov.uk/employingmigrants
If you have any questions about these guidance
documents, you can telephone the Employers’
Helpline on 0845 010 6677.
Immigration Issues
For written advice concerning immigration issues you
should contact:
The Border and Immigration Agency
Lunar House
40 Wellesley Road
Croydon, CR9 2BY
For immigration telephone enquiries please contact
the Immigration Enquiry Bureau (IEB) on 0870 606
7766. If callers who are hard of hearing have access
to a Minicom you can contact them on 0800 389
8289. Please note that there is no provision for verbal
assistance on this line.
The IEB opening hours are Monday-Thursday 9am -
4.45pm and on Friday from 9am - 4.30pm. It is often
easier to get through later in the day. E-mail enquiries
should be directed to:
indpublicenquiries@ind.homeoffice.gsi.gov.uk.
Please note that the IEB cannot answer questions on
individual cases via e-mail for data protection reasons.
Application forms and further information on the
worker registration and authorisation schemes for
 EEA nationals can be obtained from:
www.bia.homeoffice.gov.uk/workingintheuk
For Worker Registration Scheme e-mail enquiries,
please contact: WRS@bia.homeoffice.gsi.gov.uk
(Individuals from the Czech Republic, Estonia,
Hungary, Latvia, Lithuania, Poland, Slovenia and
Slovakia, may have to register under this scheme.)
The leaflet ‘Employing a Bulgarian or Romanian National
in the UK guidance’ provides further information
to employers on obtaining authorisation for a
Bulgarian or Romanian worker. Copies of leaflets and
application forms can be ordered from the Border
and Immigration Agency on: 0117 344 1471. Please
note that this number is only for ordering application
forms and guidance notes.
Information on work permits can be obtained at:
www.bia.homeoffice.gov.uk/workingintheuk/
workpermits/
Details on visa and entry clearance requirements
for certain nationals are available at the UK Visas
website: www.ukvisas.gov.uk
Her Majesty’s Revenue and Customs (HMRC) has
a dedicated website for employers, giving practical
advice on a range of issues and areas of employment
legislation available at: www.businesslink.gov.uk
You should remember that any EEA national you
employ will be subject to the same UK tax and
National Insurance legislation as any other employee.
The HM Revenue and Customs booklet: CWG2
Employer Further Guide to PAYE and NICs will provide
you with more details and you can order this by
calling 08457 646 646. If you are concerned about
your tax or National Insurance position and need
help putting your affairs in order, you should call
the HM Revenue and Customs Tax and Benefits
Confidential Helpline on 0845 608 6000.
19
Details about passports and identity
documents
Information on national passports and identity cards
from European Union countries, Iceland and Norway
can be found on the Council of the European Union
website via: www.consilium.europa.eu/prado
Birth and adoption certificates
To complete the required specified combination of
documents, if an individual does not have a copy
of their full birth certificate, a replacement birth
certificate may be obtained for a fee from the local
registrar in the district where they were born, or
alternatively from:
General Register Office (England and Wales)
Smedley Hydro
Trafalgar Road
Southport
PR8 2HH
www.gro.gov.uk
General Register Office (N. Ireland)
Oxford House
49 -55 Chichester Street
Belfast BT1 4HL
www.groni.gov.uk
General Register Office (Scotland)
New Register House
Edinburgh EH1 3YT
www.gro-scotland.gov.uk
If an adopted person does not have a copy of their
full adoption certificate, they can obtain a copy from
the same General Register Offices.
For any other information about obtaining birth,
death or marriage certificates relating to events in
England and Wales, you can contact the General
Register Office (GRO) on 0845 603 7788 (8am to 8pm
Monday to Friday. Saturday 9am to 4pm). Calls are
charged at the cost of a local call. Please note your call
may be recorded for training and monitoring purposes.
 This telephone number is ‘Typetalk’ enabled. London
This means that people with hearing difficulties EHRC
can communicate with the GRO via the National 3 More London
Telephone Relay Service who set up a link with the Riverside, Tooley Street
GRO and act as an intermediary on their behalf. London SE1 2RG
Tel: 020 3117 0235
EHRC publications and contact details Fax: 01925 884275
Email: info@equalityhumanrights.com
• Racial Equality and the Smaller Business: A practical
guide (CD-Rom) – The Commission for Racial Cardiff (temporary office)
Equality, 2004. EHRC
3rd Floor, Capital Tower
• The Statutory Code of Practice on Racial Equality in Greyfriars Road
Employment – The Commission for Racial Equality, Cardiff CF10 3AG
2006. Tel: 02920 663710
Fax: 01925 886905
The Racial Equality and the Smaller Business: A
practical guide CD-Rom is available in PDF, or RTF Glasgow (temporary office)
large print format from EHRC
www.equalityhumanrights.com/ St Stephens House
publicationsandresources 279 Bath Street
Glasgow G2 4JL
The Statutory Code of practice on Racial Equality Tel: 0141 245 1855
in Employment was produced by the Commission Fax: 01925 884455
for Racial Equality (CRE) in April 2006 and contains
detailed and practical guidance to help employers Manchester
to comply with the Race Relations Act 1976. An EHRC
electronic copy of the document can be downloaded Arndale House
from the Equality and Human Rights Commission The Arndale Centre
(EHRC) website at: www.equalityhumanrights.com Manchester M4 3AQ
Tel: 0161 829 8100
Please address any enquiries about the law on Fax: 01925 884000
the prevention of illegal working to the Border Email: info@equalityhumanrights.com
and Immigration Agency through the contact
details given, and not to the EHRC. The Equality Commission for Northern Ireland
Equality Commission for Northern Ireland
The EHRC can advise on matters relating to the law Equality House
on discrimination, and the contact details for the 7-9 Shaftesbury Square
national offices are listed as follows: Belfast, BT2 7DP
Tel: 028 90 500 600
Fax: 028 90 248687
Text phone: 028 90 500589
Email: information@equalityni.org

20
 LIST A
DOCUMENTS WHICH SHOW AN ONGOING RIGHT TO WORK

Single Documents 1. A passport showing that the holder, or a

Any of the documents, or combination of
documents, described in List A demonstrate that
the holder is entitled to work in the UK and will
provide you with an excuse from liability to pay a
civil penalty if you follow all of the steps set out
on pages 8–10.
person named in the passport as the child
of the holder, is a British citizen or a citizen
of the United Kingdom and Colonies having
the right of abode in the United Kingdom.
Only the following passports are acceptable:

If your employee presents a document or specified

combination of documents from List A, there is
no need to ask for any other documents contained
in List B.

You should only accept original documents.

You will not have an excuse against liability

to pay a civil penalty if you know that the
individual is not entitled to work for you.

The following documents are listed using the same

numbers as those given in the legislation.

21
 A passport stating that the holder is a ‘citizen of the
United Kingdom and Colonies’ will only be acceptable if
it includes the words: ‘holder has the right of abode in the
United Kingdom.’
Page 48 has further details of certain other types of
British passport that do not provide evidence of a
person’s entitlement to work as they do not confirm
that the holder is a British citizen.
Certain Commonwealth citizens and citizens with
dual nationality have the right of abode in the
United Kingdom and do not have any immigration
restrictions placed on the work they can do here.
2. A passport or national identity card showing
that the holder, or a person named in the
passport as the child of the holder, is a
national of a European Economic Area
country or Switzerland.
All nationals from European Economic Area (EEA)
countries and Switzerland are free to live and work
in the UK. You will be able to find more details
about employing these nationals, and a list of EEA
countries, in Appendix B.

You can check that someone has the right of abode

by looking for this sticker in their national passport.

22
 3. A residence permit, registration certificate
or document certifying or indicating
permanent residence issued by the Home
Office or the Border and Immigration
Agency to a national of a European
Economic Area country or Switzerland.

For nationals from EEA countries, this document

consists of a blue permit carrying a photograph and
personal details of the holder. Nationals from EEA
countries can obtain a residence permit from the
Border and Immigration Agency, as shown here:

Swiss nationals receive a similar document in the

form of a pink residence permit, as pictured above.

These documents have been replaced by new

certificates, but either document is valid.

23
 4. A permanent residence card issued
by the Home Office or the Border and
Immigration Agency to the family member
of a national of a European Economic Area
country or Switzerland.
When nationals from EEA countries and Switzerland
reside in the UK, their immediate family members
from outside the EEA or Switzerland may gain
the same rights to enter or remain here and work
here freely. However, the EEA national in question
must be lawfully residing in the UK for their family
member to have and maintain these rights.
6. A passport or other travel document
endorsed to show that the holder is exempt
from immigration control, is allowed to stay
indefinitely in the United Kingdom, has the
right of abode in the United Kingdom, or
has no time limit on their stay in the United
Kingdom.
Appendix C has full details of the various UK
Government stamps and endorsements which
demonstrate a person’s immigration status.

Appendix C has full details of the various UK

Government stamps and endorsements which
demonstrate a person’s immigration status.

5. A Biometric Immigration Document issued

by the Border and Immigration Agency to
the holder which indicates that the person
named in it is allowed to stay indefinitely in
the United Kingdom, or has no time limit on
their stay in the United Kingdom.

Images will be made available on the Border and

Immigration Agency website when the Biometric
Immigration Document is due to be issued.

24
 DOCUMENT COMBINATIONS
These documents will only give you an excuse
against liability to pay a civil penalty if they are
presented in the combinations specified.
25
FIRST COMBINATION
An official document issued by a previous
employer or Government agency, e.g. HM
Revenue and Customs (formerly the Inland
Revenue), the Department for Work and
Pensions, Jobcentre Plus, the Employment
Service, the Training and Employment Agency
(Northern Ireland) or the Northern Ireland
Social Security Agency, which contains the
permanent National Insurance number and
name of the person.
A P45, P60, National Insurance number card, or a
letter from a Government agency may be acceptable to
demonstrate a person’s permanent National Insurance
number in order to have this part of your excuse.
 Along with checking and copying a document
giving the person’s permanent National
Insurance number and name, you must
also check and copy ONE of the following
documents listed in sections 7- 13:
7. An Immigration Status Document issued
by the Home Office or the Border and
Immigration Agency to the holder with an
endorsement indicating that the person
named in it is allowed to stay indefinitely in
the United Kingdom or has no time limit on
their stay in the United Kingdom

In December 2003, the Home Office began to phase

in the issuing of the Immigration Status Document
(ISD) to some new applicants granted Indefinite
Leave to Enter or Remain in the United Kingdom.

A valid ISD contains a United Kingdom Residence

Permit endorsement (see Appendix C for further
information). The ISD also has a section providing
further details of the holder’s status and personal
details. You should copy all of the separate parts of
the ISD, which are pictured below.

26
 OR OR

8. A full birth certificate issued in the United 9. A full adoption certificate issued in the United
Kingdom which includes the name(s) of at Kingdom which includes the name(s) of at
least one of the holder’s parents least one of the holder’s adoptive parents

You should accept only the original of a full UK You should accept only the original of a full UK
birth certificate, which must include the names of the adoption certificate, which must include the names of
holder and at least one of their parents. the holder and at least one of the adoptive parents.

In some cases, a full birth certificate will only provide

details of one of the holder’s parents, and this will
also be acceptable as part of your excuse. Short birth
certificates which do not have details of either of the
holder’s parents will not establish this part of your
excuse.

27
 OR

10. A birth certificate issued in the Channel

Islands, the Isle of Man or Ireland

Nationals from the Common Travel Area have

no immigration restrictions placed on the type of
employment they can take here and you can check
their birth certificates to form part of your excuse.

28
 OR OR

11. An adoption certificate issued in the 12. A certificate of registration or naturalisation

Channel Islands, the Isle of Man or Ireland as a British citizen

You should check that the A4 certificates describe the

holder as a British citizen as indicated below.

These documents were replaced by new certificates

of registration and naturalisation in February 2004
and are shown below.

Nationals from the Channel Islands, the Isle of Man

and Ireland (also known as the Common Travel Area)
have no immigration restrictions placed on the type
of employment they can take here.

29
 OR

13. A letter issued by the Home Office or the

Border and Immigration Agency to the
holder which indicates that the person
named in it is allowed to stay indefinitely in
the United Kingdom.

Until March 2004, individuals granted indefinite leave

to enter or remain were usually issued with a Home
Office status letter, pictured below.

These letters clearly state that the holder is able to

take up employment.

30
 LIST B
DOCUMENTS WHICH SHOW A RIGHT TO WORK FOR UP TO 12
MONTHS
SINGLE DOCUMENTS
Any of the documents, or combination of
documents, in List B, can demonstrate that a
person is entitled to work in the UK for a limited
period. They will provide you with an excuse
against liability to pay a civil penalty for up to 12
months from the date on which you carry out the
checks, if you follow all of the steps set out on
pages 8–10.
If your employee presents a document or specified
combination of documents from List B, there is no
need to ask for any documents contained in List A.
You should only accept original documents.
You will not have an excuse against liability to
pay a civil penalty if you know that the individual
is not entitlement to do the work for you.
The following documents are listed using the same
numbers as those given in the legislation.
31
1. A passport or travel document endorsed to
show that the holder is allowed to stay in the
United Kingdom and is allowed to do the
type of work in question, provided that it
does not require the issue of a work permit.
Those nationals from outside the European
Economic Area (the EEA) who are subject to
immigration control and who have been given current
leave to work here will be able to demonstrate this by
producing a UK Government stamp or endorsement
in their national passport or travel document. When
the Government grants a person limited leave to
enter or remain it may place restrictions on the length
or type of work a person can do here according to
their immigration status. If you have had to apply
for a work permit from Work Permits UK to employ
someone, then you should refer to pages 33-34 for
details of how to establish an excuse.
2. A Biometric Immigration Document issued
by the Border and Immigration Agency to
the holder which indicates that the person
named in it can stay in the United Kingdom
and is allowed to do the work in question.
Images will be made available on the Border and
Immigration Agency website when the Biometric
Immigration Document is due to be issued.
 5. A residence card or document issued
by the Home Office or the Border and
Immigration Agency to a family member of
a national of a European Economic Area
country or Switzerland.

32
 DOCUMENT COMBINATIONS FIRST COMBINATION

These documents will only give you an excuse 3. A work permit or other approval to take
against liability to pay a civil penalty if they are employment issued by the Home Office or
presented in the combinations specified. the Border and Immigration Agency

If you are planning to employ someone on a

work permit, you may be involved in making an
application for that person and will have received
direct notification from the Border and Immigration
Agency of the success of that application. You may
also use the services of a representative to obtain a
permit. In these cases, you should ensure that your
representative provides you with the original permit
or approval from the Border and Immigration
Agency.

If you have made an application before your

employee arrives in the UK, then the Border and
Immigration Agency will issue you directly with
a work permit (shown below) if you have been
successful.

33
 If you have made an application while the employee
is in the UK, then the Border and Immigration
Agency may notify you with a letter of permission.
This will be in the form of the letter shown here:
34
Along with the actual permission from the
Border and Immigration Agency for the person
to take the employment in question, you must
also ensure that the work permit applicant has
been given leave to enter or remain in the UK.
This will be in the form of:
i. a passport or another travel document
endorsed to show the holder is allowed to
stay in the United Kingdom and is allowed
to do the work in question
Most work permit applicants will have been granted
leave in their passports stating that they are able to
‘work as authorised by the Secretary of State’.
Full details of the endorsements or ink stamps can be
found in Appendix C.
 OR
ii. a letter issued by the Home Office or the
Border and Immigration Agency to the
holder or the employer or prospective
employer confirming the same
A small number of work permit applicants may not
have a national travel document and instead will
be issued with an Immigration Status Document
endorsed with a United Kingdom Residence Permit,
as shown here.
This Residence Permit clearly shows that the
individual has Limited Leave to Remain and whether
there are any work conditions.
35
SECOND COMBINATION
The following documents (Certificate of Application
and Application Registration Card) will only give you
an excuse against liability to pay a civil penalty if they
have been checked by the Border and Immigration
Agency Employer Checking Service. Details of the
Employer Checking Service are available on page 13
and on the Border and Immigration Agency website at:
www.bia.homeoffice.gov.uk/employingmigrants
4. A Certificate of Application issued by
the Home Office or the Border and
Immigration Agency to or for a family
member of a national of a European
Economic Area country or Switzerland
stating that the holder is permitted to take
employment which is less than 6 months old
Family members of nationals from EEA countries
and Switzerland may apply for residence documents,
such as a residence card, which demonstrate
entitlement to work in the UK. Under European
legislation, many are also entitled to engage in
employment whilst these applications are under
consideration and before residence documents
have been issued by the Border and Immigration
Agency. The Border and Immigration Agency will
provide such applicants with an initial letter of
acknowledgment.
Upon positive verification of the letter of
acknowledgement, the Border and Immigration
Agency will provide a new document to the individual
which will clearly state that the person named has an
entitlement to work in the UK.
 OR

6. An Application Registration Card issued

by the Home Office or the Border and
Immigration Agency stating that the holder
is permitted to take employment

Only a small number of asylum seekers are permitted

to work here while they await a decision on their
claim. Since May 2004 you have only been able to
establish that an asylum seeker has permission to
work by checking a Home Office-issued Application
Registration Card (ARC). If the holder is permitted
to work, it will state ‘employment permitted’ or on
both sides of their card as indicated below.

If you are presented with an ARC which states
‘employment prohibited’ on either side, as shown
here, then you may be liable for payment of a civil
penalty for employing an illegal migrant worker, or
commit a criminal offence of knowingly employing
an illegal migrant worker, unless the person can
otherwise demonstrate their entitlement to work in
the UK.
You should not accept a Standard Acknowledgement
Letter (SAL) or Immigration Service Letter (IS96W)
as evidence that an asylum seeker has permission to
work. If an asylum seeker presents these documents
to you, refer them to the Home Office on 0151 237
6375 for further advice on how they can obtain an
ARC.

There is a new generation of ARC, which will

be issued shortly. The “Employment Permitted”
wording printed on the ARC will be replaced with
‘Allowed to Work’ and the ‘Employment Prohibited’
wording printed on the card will be replaced with
‘Forbidden from Taking Employment.’

36
 THIRD COMBINATION

A document issued by a previous employer or

Government agency, e.g. Inland Revenue (now
HM Revenue and Customs), the Department
for Work and Pensions, Jobcentre Plus,
the Employment Service, the Training and
Employment Agency (Northern Ireland) or the
Northern Ireland Social Security Agency, which
contains the National Insurance number and
name of the holder.

A P45, P60, National Insurance number card, or a

letter from a Government agency may be acceptable
evidence of a person’s permanent National Insurance
number in order to have this part of your excuse
against a liability to pay a civil penalty.

37
 Along with checking and copying a document
giving the person’s National Insurance number,
you must also check and copy ONLY ONE of
the following documents listed in sections 7 - 8:

7. An Immigration Status Document issued

by the Home Office or the Border and
Immigration Agency to the holder with an
endorsement indicating that the person
named in it can stay in the United Kingdom,
and is allowed to do the type of work in
question.

From March 2004, the Home Office issued an

Immigration Status Document (ISD) to some
applicants given limited leave to enter or remain in
the United Kingdom.

The ISD contains a United Kingdom Residence

Permit endorsement which clearly states what leave
the holder has. The ISD also states whether the
individual is free to work in the UK and whether the
entitlement to work is subject to any conditions. You
should copy and retain the copy of all of the parts, as
indicated on page 26.

The Residence Permit clearly shows that the

individual has Limited Leave to Remain.

38
 OR

8. A letter issued by the Home Office or

the Border and Immigration Agency to
the holder or the employer or prospective
employer, which indicates that the person
named in it can stay in the United Kingdom
and is allowed to do the work in question.

All of the letters pictured indicate that an applicant

has been granted a form of leave by the Home Office
and that they have permission to stay in the UK for a
limited period of time. Immigration restrictions may
however have been placed on the type of work they
can do here, which you should check carefully.

In order to have this part of your excuse, the letter

must grant the holder leave to enter or remain in the
UK. You should also check that any stamps on this
letter carefully to see if the holder is permitted to take
the type of work that you are offering. Appendix C
has further examples of the types of endorsements
and ink stamps and what employment conditions
have been imposed.

39
 Appendix A
SOME QUESTIONS YOU MIGHT HAVE

Index

Establishing an excuse against liability for payment of a civil penalty

Q1 Why should I carry out document checks?

Q2 Once I have initially checked a person’s documents, is there anything else I have to do during the
course of the person’s employment?
Q3 How may a British citizen show their eligibility to work in the UK?
Q4 What if a prospective employee cannot provide evidence of their entitlement to work?
Q5 What if a prospective employee produces two documents, but not from the specified
combinations included in List A or List B?
Q6 What should I do if I have concerns about the documents presented to me by an employee?
Q7 Should I keep original documents?
Q8 How long do I need to keep the copies of any of the documents I have recorded?
Q9 What if my copies of the documents are lost or accidentally destroyed?
Q10 Why does the civil penalty and the knowing offence only apply to employees over 16?
Q11 Will I have an excuse against liability to pay a civil penalty if I make a copy of a right of
abode certificate from an expired passport?

Main groups you can employ in the UK without committing an offence

Q12 Do I need an excuse under section 15 when employing those workers who are exempt from
immigration control?
Q13 Which groups in the UK are not subject to immigration control?
Q14 Can a British Dependent Territories Citizen who has a connection with Gibraltar legally work in the UK?

Documents that do not show a person is entitled to work in the UK

Q15 Many British citizens do not have a UK passport or a full birth certificate, so why is the short birth
certificate not acceptable as a document under section 15?
Q16 Why can’t I depend on a National Insurance number as a single document?
Q17 What if I check other documents which establish evidence of someone’s identity?
Q18 Why isn’t a British visitor’s passport acceptable?
Q19 Why aren’t driving licences issued by the DVLA acceptable?
Q20 Can an adopted person, who is a British citizen and who does not have a full birth certificate, prove
their eligibility to work in the UK with their adoption certificate?

Definition of an employer

Q21 What is the definition of ‘employer’ for the purposes of section 15?
Q22 How can I tell if my prospective worker will be classed as someone who is ‘self-employed’ or ‘my
employee’ for section 15 purposes?
Q23 As a parent, am I responsible for checking whether my nanny or childminder is entitled to work in the
UK?
Q24 Am I defined as the ‘employer’ if I use an employment agency to find my staff ?
Q25 I am running an employment agency. Do I have to carry out the checks?
Q26 Who in the organisation is held liable for employing someone illegally?
Q27 What if I acquire staff as the result of a TUPE transfer?

40
 Q28 I am an employer based in the UK and I wish to employ a non-EEA national outside the UK. Would I
be required to check my employees’ entitlement to work?
Q29 My business employs workers on a casual basis through the internet. Managers do not meet with
employees and are therefore unable to verify the identity or entitlement to work of their employees.
What steps can I take to ensure that I am not liable to pay a civil penalty?

National Insurance (NI) numbers

Q30 If a new employee only possesses a document with details of their NI number, does this establish an
excuse?
Q31 Who issues permanent NI numbers?
Q32 Can I accept any document which contains a NI number?
Q33 What if a job applicant produces one of the documents from a required combination, but does not
have a document containing a NI number? Should I employ that person and obtain a NI number for
them after they start working for me?
Q34 What if a UK resident who is under 20 applies for a job with me and claims they have not been issued
with a NI number, but does have a full UK birth certificate?
Q35 Do workers from EEA member states need a NI number to prove that they have permission to work
in the UK?

Employing asylum seekers

Q36 Can I employ asylum seekers?

Q37 How will I know if an asylum seeker is able to work?
Q38 What if an individual presents me with a Standard Acknowledgement Letter (SAL), or IS96W letter,
which states that they are entitled to work?
Q39 I am already employing an asylum seeker, who I employed on the basis of seeing their SAL or IS96W.
Should I ask for an Application Registration Card (ARC), or conduct ongoing checks?
Q40 What happens if an asylum seeker is given leave to enter or remain and how can they prove their
entitlement to work in the UK?
Q41 Are failed asylum seekers allowed to work pending other applications or removal from the UK?

Employing European Economic Area workers

Q42 Do A8 nationals who are agency and/or temporary workers need to register on the Worker
Registration Scheme (WRS)?
Q43 Can I accept an identity card from any EEA member state in order to have an excuse against liability to
pay a civil penalty?
Q44 Can I have an excuse against liability to pay a civil penalty by accepting an EEA/UK/Swiss passport
which has expired?
Q45 Is the UKRP the same as the Registration Certificate issued to EEA nationals?
Q46 What is a residence card?
Q47 Can a non-EEA national who was formerly a family member of an EEA national maintain their
entitlement to work in the UK?
Q48 What is a Certificate of Application?

41
 Employing Students

Q49 Are non-European Economic Area students allowed to work in the UK?
Q50 Students from outside the EEA can work for 20 hours per week during term time. How do you define
term-time?
Q51 How does the 20-hour rule affect non-EEA postgraduate students?
Q52 What about work placements for non-EEA students as part of their course?
Q53 Can a non-EEA student with valid leave to enter or remain in the UK defer his/her studies?

Voluntary Activity

Q54 Can asylum seekers volunteer their services?

Q55 Can I be liable for payment of a civil penalty if I am found to be providing voluntary work to someone
without permission to work in the UK?
Q56 What is the difference between ‘volunteering’ and ‘unpaid work’? For example, if a posting entitles a
participant to observe what happens in a clinical setting in the UK, does this contravene the ‘no work’
endorsement stamp in their passport?
Q57 Are failed asylum seekers allowed to volunteer pending removal or other applications?
Q58 Can anyone at the end of the immigration application process volunteer?

Further questions

Q59 I am currently employing someone under the Working Holiday Maker scheme. How can I apply for
permission to employ them after their visa expires?
Q60 Isn’t the Border and Immigration Agency discriminating against those British citizens who have, or are
in the process of gender transitioning? The introduction of the requirement to show a combination
of the National Insurance number and a birth certificate may cause problems for a person in this
situation.

The Points-Based System

Q61 When did the Points-Based System open?

Q62 What is sponsorship under the Points-Based System?

42
 Establishing an excuse against liability
for payment of a civil penalty
Q1 Why should I carry out document checks?
Although employers are not legally required to
conduct document checks, we recommend that
they are conducted on all prospective employees,
as this establishes an excuse against liability to pay
a civil penalty, provides evidence of an open and
transparent recruitment process and will ensure that
your recruitment practices do not discriminate against
individuals on racial grounds.
The Government has made information available
on how to avoid racial discrimination, in addition
to a Code of practice for employers, with the aim
of providing employers with guidance on the best
practice. The Code does not create any new legal
obligations for employers, or make an employer
liable to any proceedings, but it can be admissible as
evidence in any proceedings under the Race Relations
Act 1976 or the Race Relations (Northern Ireland)
1997 Order, brought before an Employment Tribunal
(an Industrial Tribunal in Northern Ireland).
If you operate discriminatory recruitment
processes you could face prosecution under the
1976 Act or the 1997 Order, and an unlimited fine
if you are found guilty of breaking this law.
Q2 Once I have initially checked a person’s
documents, is there anything else I have
to do during the course of the person’s
employment?
A. You can have an excuse against liability to pay a
civil penalty by following steps 1 – 3 detailed on
pages 8-10. If the prospective employee provides
the specified documents from List A, and
providing that you are satisfied they are entitled
to take the job you are offering, no further
document checks need to be made during the
course of that person’s employment with you.
If the prospective employee provides the
specified documents from List B, and providing
that you are satisfied they are entitled to take
43
the job you are offering, then you may have
the excuse. To have the excuse, you will need
to carry out repeat checks, following steps 1-3,
at least once every 12 months, to ensure the
employee can still work legally in the UK. To
have the excuse you should continue to carry
out these checks until the employee produces
specified documents from List A, or stops
working for you.
You will not at any point have an excuse
against liability to pay a civil penalty if
you employ a person who you know is not
entitled to work for you, regardless of what
document checks you carry out.
Q3 How may a British citizen show their
eligibility to work in the UK?
A. A British citizen may demonstrate their
eligibility to work by providing either their UK
passport as a single document, or a combination
of the following documents from List A:
• a document issued by a Government Agency
or previous employer containing their
permanent National Insurance number
and name, such as a P45, P60 or National
Insurance number card and
• a full UK birth certificate; or
• a full UK adoption certificate; or
• a certificate of registration as a British citizen;
or
• a certificate of naturalisation as a British
citizen.
Q4 What if a prospective employee cannot
provide evidence of their entitlement to
work?
A. It is the prospective employee’s responsibility
to demonstrate that they are permitted to do
the job you are offering. You can withdraw your
offer of employment to a job applicant if they
 cannot demonstrate their entitlement to work
legally and you need to fill the post urgently.
If you do not need to fill your post immediately
and the prospective employee does not have
any of the documents or specific combinations
of documents included in List A or List B,
then you may consider keeping the post open
and allow them time to produce the specified
document, or documents, from these lists.
Q5 What if a prospective employee produces
two documents, but not from the specified
combinations included in List A or List B?
A. You will only have an excuse against liability to
payment of a civil penalty if you are presented
with one of the single documents or specified
combinations of documents set out in List A
or B, but not if the documents are presented
in any other combination. For example, if you
check an Immigration Status Document and
a certificate of naturalisation, this would not
give you an excuse against liability to pay a civil
penalty, as this is not a specified combination of
documents.
Q6 What should I do if I have concerns about
the documents presented to me by an
employee?
A. If you have carried out Steps 1 – 3, as detailed
on pages 8-10, and are not satisfied that the
prospective employee is the rightful holder of
the documents they have produced to you, then
you should not employ that person.
If you have any concerns about the validity of
the documents presented to you, you should
contact the Immigration Enquiry Bureau on
0845 606 7766 for further advice. They will treat
any information you provide in confidence,
however information may be disclosed within
the Border and Immigration Agency and to
other Government departments, agencies and
local authorities.
44
Q7 Should I keep original documents?
A. It is not appropriate to keep a person’s original
documents, except for the purpose of copying
them. They must be returned as quickly as
possible. The only exceptions to this are:
• when an individual gives you part 2 of a
P45, as part of a combination of specific
documents in List A or List B; or
• when you employ someone for a day or less
and it is not practicable to obtain a copy of
the documents. If you decide to do this, you
must also have facilities for keeping the
documents safe.
You should not keep a job applicant’s
original documents for longer than a day. If
you deliberately take a person’s passport or other
original documents belonging to them, or retain
these without their consent, then you may be
guilty of an offence under the Theft Act 1968,
or under section 25(5) of the Identity Cards Act
2006.
Q8 How long do I need to keep the copies of
any of the documents I have recorded?
A. You should keep any copies you have made
securely for the duration of the individual’s
employment and for a further two years after
they leave your employment. This allows the
Border and Immigration Agency to check
whether you are liable to pay a civil penalty if
they detect anyone working illegally for you.
Part 2 of the P45 must also be kept for at least
three years after the end of the current tax
year in order to comply with HM Revenue and
Customs regulations.
If you accept original documents from an
employee because the employment is of a day
or less, and return the documents at the end of
that day, you do not need to be concerned about
the two-year period mentioned above.
 Q9 What if my copies of the documents are lost
or accidentally destroyed?
A. You can have an excuse against liability to pay a
civil penalty by copying, or otherwise recording
any specified documents produced to you. It is
easier to demonstrate that you did this if you
can show that you have a consistent practice of
copying documents for each employee.
Q10 Why does the civil penalty and the knowing
offence only apply to employees over 16?
A. UK legislation on the prevention of illegal
migrant working, including the provisions of
sections 15 and 21 of the Immigration, Asylum
and Nationality Act 2006, only applies to those
who are aged 16 and over because there is
separate legislation governing the employment
of children.
Q11 Will I have an excuse against liability to pay
a civil penalty if I make a copy of a right of
abode certificate from an expired passport?
A. A non-European Economic Area national
passport endorsed to show that the holder has
indefinite leave to enter or remain is evidence
of a person’s entitlement to work only if the
passport is valid. Checking the passport of a
prospective employee will not provide an excuse
against liability to pay a civil penalty if the
passport has expired.
However, there may be occasions when a
prospective employee presents a passport
containing the following ink stamp, which
was formerly used by Immigration Officers
to transfer a person’s conditions from an old
passport into a new passport. If someone
presents this ink stamp to you in their passport,
they should also present their previous passport,
which you should also copy, containing their
previous leave, to demonstrate that they are
permitted to take the job you are offering.
45
Main groups you can employ in the UK
without committing an offence
Q12 Do I need an excuse under section 15 when
employing those workers who are exempt
from immigration control?
A. As an employer, you place yourself at risk of
liability to a civil penalty if you employ a person
aged 16 or over who is subject to immigration
control and who is not permitted to undertake
the work in question.
The law states that the offence of employing
an illegal migrant worker only applies where a
person employs an individual who is “subject
to immigration control.” However you should
establish that a prospective employee, who
claims to be exempt, is actually exempt. It will
also protect you where you accept in good
faith a fraudulent document indicating an
exempt status where the fraud is not reasonably
apparent.
If the person is genuinely exempt, then the
employer would not be liable to payment of
a civil penalty. However, we recommend that
the checks are conducted on all prospective
employees, as this will provide an excuse from
liability to pay a civil penalty, provide evidence of
an open and transparent recruitment process and
will ensure that your recruitment practices do not
discriminate against individuals on racial grounds.
 Q13 Which groups in the UK are not subject to
immigration control?
A. The main groups who are not subject to
immigration control in the UK, and who you
can employ without restriction are:
• British citizens; and
• Commonwealth citizens with the right of
abode; and
• Nationals from the Common Travel Area
(CTA); and
• Nationals from European Economic Area
(EEA)/European Union (EU) countries and
Switzerland; and
• Family members of adult nationals from
EEA/EU countries and Switzerland,
providing the EEA/EU national is lawfully
residing in the UK.
You should not employ any individual solely on the
basis of their claim to belong to one of these groups
– this will place you at risk of employing someone
illegally if their claims are false. You should establish
an excuse for all of your prospective employees by
following steps 1 – 3, as detailed on pages 8-10.
Q14 Can a British Dependent Territories Citizen
who has a connection with Gibraltar legally
work in the UK?
A. A passport which states that the holder is a
British Dependent Territories citizen, who has
a connection with Gibraltar, is not acceptable
as evidence that the person is entitled to
work in the UK, unless it also contains a valid
endorsement to show that the individual is
a British citizen. This could be a right of
abode certificate, or the person can provide
a document, or documents that otherwise
establishes their exemption from immigration
controls. This will mean that the holder will not
have any conditions placed upon them whilst
living and working in the UK. If a document
46
contains such an endorsement, then it may be
accepted as a single document and an employer
may have an ongoing excuse by copying it.
Documents that do not show a person is
entitled to work in the UK
Q15 Many British citizens do not have a UK
passport or a full birth certificate, so why is
the short birth certificate not acceptable as a
document under section 15?
A. The short birth certificate is a document that
has proved vulnerable to forgery. A person
could enter fictitious details about their parents,
or a person could attempt to work here illegally
by making a false statement about themselves.
These types of false representation can be
prevented by the requirement for a full birth
certificate and would ultimately be prevented
by the introduction of an identity card with
biometric information.
In addition, a full birth certificate also gives
valuable background information which is
absent from the short birth certificate. Not only
does it provide the names of the parents, but
also where they were born, their occupation at
the time of the birth, their address at the time
of the birth and the place where the child was
born. All this information may be used to verify
personal details if necessary.
Q16 Why can’t I depend on a National Insurance
number as a single document?
A. The purpose of the National Insurance (NI)
number is primarily to monitor an individual’s
National Insurance contributions and credited
contributions. The NI number is also used as
a reference number for individuals within the
social security system; it was neither intended,
nor designed to be a tool for identifying or
determining an individual’s immigration status.
Not all NI number holders will be entitled to
work in the United Kingdom. Therefore, the
provision of a NI number in isolation is not
 sufficient to establish the individual’s right to work
in the UK. Employers must check documents
showing the NI number, which will only allow
you to have an excuse against liability to pay a civil You may also see some passports which contain
penalty if they are produced as part of one of the
combinations specified in List A or B.
Q17 What if I check other documents which
establish evidence of someone’s identity?
A. Only checking the documents specified in List
A or List B allow you to establish and retain an
excuse against liability to pay a civil penalty. The
following documents will not allow you to have
an excuse against liability:
• a Home Office Standard Acknowledgement
Letter or Immigration Service Letter (IS96W)
which states that an asylum seeker can work in
the UK;
• a passport describing the holder as a British
Dependent Territories Citizen which states that A. The legislation states that the passport must
the holder has a connection with Gibraltar;
• a short (abbreviated) birth certificate issued in
the UK which does not have details of at least
one of the holder’s parents;
• a permanent National Insurance (NI) number
when presented in isolation;
• a card or certificate issued by the Inland
Revenue under the Construction Industry
Scheme;
• a full or provisional driving licence issued by
the Driver and Vehicle Licensing Agency;
• a temporary NI number beginning with TN,
or any number which ends with the letters
from E to Z inclusive;
• a licence provided by the Security Industry
Authority;
• a document check by the Criminal Records
Bureau;
47
• a bill issued by a financial institution, or a
utility company.
the word ‘British’ but which are not acceptable
(unless it contains a certificate of entitlement or
a relevant endorsement). These are:
• a British Visitor’s Passport; or
• a passport that describes the holder as:
- a British National (Overseas);
- a British Dependent Territories Citizen;
- a British Overseas Territories citizen;
- a British Overseas citizen;
- a British subject; or
- a British protected person.
Q18 Why isn’t a British visitor’s passport
acceptable?
describe the holder as a ‘British citizen, or a
citizen of the United Kingdom and Colonies
having the right of abode in the United
Kingdom.’
The visitors’ passport only contains the following
words: ‘British Subject. Citizen of the United
Kingdom and Colonies.’ This does not confer
the same rights and privileges on the holder as a
full British passport, nor does it conform to the
legislation, therefore, it cannot when checked
establish an excuse for the employer under
section 15.
Q19 Why aren’t driving licences issued by the
DVLA acceptable?
A. It is important that employers can rely on the
documents specified in List A or List B to
establish a person’s identity, nationality and
entitlement to work and that those who are
enjoying the right to work in this country can
demonstrate it without undue difficulty. That is
why the list of specified documents includes the
UK passport, a secure form of photographic
 identification confirming possession of British
citizenship and excludes other documents like
utility bills, paper driving licences, or council tax
bills, which achieve none of these objectives.
Although the photo card driving licence
contains a digital image and states the country
of birth, it does not categorically establish
the holder’s nationality, or their entitlement
to work in the UK. Whilst the Driver and
Vehicle Licensing Agency might undertake
necessary document checks to confirm an
applicant’s identity, this is because they are
responsible for issuing documents that verify an
individual’s entitlement to drive a vehicle, and
not establishing whether or not they have an
entitlement to work in the UK.
Q20 Can an adopted person, who is a British
citizen and who does not have a full birth
certificate, prove their eligibility to work in
the UK with their adoption certificate?
A. Yes, when the full adoption certificate, which
includes the names of one of the adopted
parents, is produced in combination with
an official document showing their properly
documented, permanent National Insurance
number. Under section 15, full adoption
certificates may be produced in place of full
birth certificates.
In addition, a British citizen who has been
adopted, but who does not have a copy of their
full birth certificate, may still be able to obtain a
UK passport. This will provide an excuse when
checked as a single document from List A.
Definition of an employer
Q21 What is the definition of ‘employer’ for
the purposes of sections 15 and 21 of the 2006
Act?
A. An ‘employer’ is defined as a person who
employs an individual under a contract of
employment. This may be a contract of service
or apprenticeship, whether express or implied.
If the contract is expressed, this can be either
48
orally or in writing. In most cases, it should be
clear when you are entering into such a contract
of service with an employee, and that you need
to carry out the appropriate checks to have an
excuse.
Q22 How can I tell if my prospective worker
will be classed as someone who is ‘self-
employed’ or ‘my employee’ for section 15
purposes?
A. In some cases it may not be easy to decide
whether someone who will undertake work
for you will be your employee or will be self-
employed. The exact nature of the relationship
is not determined by whether the worker is
designated as an ‘employee’ or ‘self-employed’.
Rather, whether a person is truly your employee
or self-employed will depend on all the facts and
circumstances of the case.
The criteria below should provide you with a
guide as to your worker’s status, although it is
only a brief guide and does not cover every
situation. For each relationship the whole
picture needs to be assessed in light of the facts.
If you can answer yes to the following
questions, then that would suggest that the
worker is, or will be, your employee:
• Will you require the personal service of the
worker?
• Will you be able to control when and how the
work is done, what tasks have to be done and
where the services are performed?
• Will you supply the tools or other equipment
needed to do the work?
• Will the employee be paid by the hour, week
or month and receive overtime pay?
If, on the other hand, you can answer yes to the
following questions; that would suggest that
your worker is self-employed:
 • Will the worker have the right to provide a
substitute, or engage their own helpers?
• Will the worker decide whether or not to
accept individual tasks and how to carry them
out?
• Will the worker make their own arrangements
for holidays or sickness absences?
• Will the worker be free to do the same type of
work for more than one employer at the same
time?
• Will the worker provide the main items of
equipment needed to do the job in question?
• Will the worker have a real risk of financial
loss?
Where there is any doubt, the Border and
Immigration Agency recommends that you
check the person’s entitlement to work, rather
than risking liability to pay a civil penalty if you
are found to be employing an illegal migrant
worker.
Q23 As a parent, am I responsible for checking
whether my nanny or childminder is entitled
to work in the UK?
A. Nannies cannot usually be classed as self-
employed, as the nature of their work does not
meet the HM Revenue and Customs criteria for
self-employed status, so you, as their employer,
are responsible for checking their entitlement to
work before you employ them.
Employing a child carer, such as an approved
nanny, is different from engaging the services of
a childminder, who is usually self-employed. A
childminder is responsible for setting their own
hours of work, their own fees and conditions,
whereas you are responsible for setting your
approved nanny’s hours, wages and conditions.
In cases where a child carer is genuinely self-
employed, you will not be their employer for the
purposes of section 15.
49
Q24 Am I defined as the ‘employer’ if I use an
employment agency to find my staff ?
A. This will depend on the nature of the relationship
between you and your worker. If you use an
employment agency to find new staff for you,
but you then employ those staff under a contract
of service with you, then you will ‘employ’ those
people for the purposes of this legislation and are
responsible for checking their entitlement to work.
If you obtain workers from an employment
agency and it is apparent from all of the
facts and circumstances that the nature of
the relationship is such that they are not your
employees, then you will not ‘employ’ them for
the purposes of this legislation and do not need
to check their entitlement to work.
You may lose the service of any of your workers
if they are found to be working illegally in the
United Kingdom.
Q25 I am running an employment agency. Do I
have to carry out the checks?
A. Again, this will depend on the nature of the
relationship between you and your worker. If
you supply temporary workers to your clients
for temporary assignments, you will probably be
the employer for the purposes of section 15.
If you introduce workers to client employers
for direct employment by those hirers (i.e.
“permanent recruitment”) you will not be the
employer for the purposes of section 15, as these
will be the responsibility of the client employer.
However, you will still need to check the identity
of the worker (and that they have the experience,
training, qualifications and any authorisation
necessary to carry out the work) for the purposes
of employment agency legislation.
More information on employment agency
legislation is available from the Department for
Business, Enterprise and Regulatory Reform at:
www.berr.gov.uk/employment/
employment-agencies/index.html
 Q26 Who in the organisation is held liable for
employing someone illegally?
A. The ‘employer’ may be subject to a civil penalty
and it will depend on the circumstances of each
case who that might be. It may, for example, be
a named individual, a company, or each partner
in a partnership. If it is a corporate body, then
that body itself may be liable.
If the employer is a company, any director,
manager, secretary or other similar officer, or
any person who was purporting to act in such a
capacity may also be liable to pay a civil penalty,
or be guilty of a criminal offence, if it was
committed with their consent or connivance, or
as a result of their negligence.
In the case of the offence of knowingly
employing a migrant worker (under section 21
of the 2006 Act), each partner in a partnership
will be considered guilty of the offence and
will be proceeded against accordingly. The
position is different for a limited partner in a
limited partnership who will only be liable in
those circumstances where a director, manager,
secretary or other similar officer or any person
purporting to act in such a capacity of a
company would be liable.
Q27 What if I acquire staff as the result of a
TUPE transfer?
A. Employers who acquire staff as a result of
a Transfer of Undertakings (Protection of
Employment) Regulations transfer are provided
with a grace period of 28 days in which to
undertake the appropriate document checks
and establish an excuse, following the date of
transfer.
Q28 I am an employer based in the UK and I
wish to employ a non-EEA national outside
the UK. Would I be required to check my
employees’ entitlement to work?
A. As an employer, you place yourself at risk of
liability to pay a civil penalty by employing
50
a person aged 16 or over who is subject to
immigration control and who is not permitted
to undertake the work for you.
The law states that the offence of employing
an illegal migrant worker only applies where a
person employs an individual who is “subject
to immigration control.” Therefore, if your
company has a base in the UK and your
employee will be required to undertake some
of his duties in person in the UK, you should
ensure your employees are entitled to work in
the UK if you wish to have an excuse against
liability to pay a civil penalty. Even if the
employee spends much of his time abroad; the
employee may still be classed as part of the UK
workforce.
Q29 My business employs workers on a casual
basis through the internet. Managers do
not meet with employees and are therefore
unable to verify the identity or entitlement
to work of their employees. What steps can
I take to ensure that I am not liable to pay a
civil penalty?
A. If the company is classed as an ‘employer,’
then they will be responsible for checking their
employees’ entitlement to work. However, if
the company are contracting out specific jobs
or services for individuals, for example, website
designers, then the workers may not fall into the
category of ‘employees’ and the company may
not be responsible for checking their entitlement
to work. See Q21 and Q22 for further details.
There are cases where the law is unclear and
for further clarification, the Department for
Business, Enterprise and Regulatory Reform
and HM Revenue and Customs provide further
information on how to define who is an
‘employer’ and who is an ‘employee’.
There are no specific exceptions under section
15 for dealing with recruiting people through
the internet. If an employer has employees
who are subject to UK law and has established
that they may be liable under the provisions of
 section 15, then they should consider changing
their recruitment practices in order to establish
an excuse against liability to pay a civil penalty.
In order to have an excuse against liability to pay
a civil penalty, it is up to the employer to satisfy
himself or herself that the person that they are
employing is permitted to work for them. This
may be established by following steps 1 – 3,
as detailed on pages 8-10, and will necessitate
meeting with the prospective employee to verify
that the person is the rightful holder of the
documents provided. The excuse should be
established before employment is offered.
National Insurance (NI) numbers
Q30 Will I have an excuse if I check only a
document with NI number details?
A. No. A document containing details of a person’s
NI number does not show a person is entitled
to work. If it is presented to you on its own by
a prospective employee, it will not provide an
excuse against liability to pay a civil penalty.
You will only have an excuse if you check an
appropriate document containing a person’s
permanent NI number and name is presented
to you as part of one of the combinations
specified in List A or List B.
The core purpose of the NI number is to
link an individual to their National Insurance
contribution record. While the overwhelming
majority of people who have a NI number
can work in the UK, possession of a number
does not always establish that the individual
is permitted to undertake all forms of
employment in the United Kingdom.
Q31 Who issues permanent NI numbers?
A. The Department for Work and Pensions is
responsible for issuing permanent NI numbers.
If you require a NI number you can apply for
one by telephoning 0845 600 0643 between
51
8am and 6pm Monday to Friday. If you are hard
of hearing, or have speech difficulties, call text
phone on 0845 600 0644.
Q32 Can I accept any document which contains
a NI number?
A. No. The following will not demonstrate that a
person has a permanent NI number:
• a card or certificate issued by the Inland
Revenue under the Construction Industry
Scheme (a CIS card); or
• a document with an invalid NI number.
This would include any temporary number
beginning with TN, or any number ending in a
letter from E to Z inclusive.
Q33 What if a job applicant produces one of the
documents from a required combination,
but does not have a document containing
a NI number? Should I employ that person
and obtain a NI number for them after they
start working for me?
A. A person can start work without a NI number.
However, the overwhelming number of
job applicants who do not possess national
passports, but who are able to work here, will
already have been issued with a NI number
by the Department for Work and Pensions’
Jobcentre Plus. You will need to have checked
and copied a person’s NI number, along with
one of the other specified documents before
employing them to have an excuse against
liability to pay a civil penalty.
A person can apply for a NI number by
telephoning 0845 600 0643 between 8am and
6pm Monday to Friday. If you are hard of
hearing, or have speech difficulties, call text
phone on 0845 600 0644. Further information
about NI numbers and the application process
can be found on the NI number section of the
DWP website, via www.dwp.gov.uk
 Q34 What if a UK resident who is under 20
applies for a job with me and claims they
have not been issued with a NI number, but
does have a full UK birth certificate?
A. Nearly all residents in the UK are automatically
given a NI number as they approach age 16. On,
or after reaching the age of 15, a young person
will receive a small plastic card notifying them
of their NI number.
A small number of young people may, however,
miss the automatic registration process.
Providing they are over the age of 15 years and
9 months and under 20 years of age, you should
advise them to contact the Juvenile Registration
Helpline on 0845 915 7006 which will ensure
that they are registered and issued with a
number quickly, providing they are entitled to
one. You may wish to consider keeping a job
offer open until that person can demonstrate
that they have been issued with a number.
If an applicant is 20 years or over and does not
have a NI number, then they will need to apply
as an adult. They can do this by telephoning
0845 600 0643 between 8am and 6pm Monday
to Friday. If they are hard of hearing, or have
speech difficulties, they should call text phone
on 0845 600 0644.
Q35 Do workers from EEA member states
need a NI number to prove that they have
permission to work in the UK?
A. If a national of an EEA country or Switzerland
provides a national passport or national identity
card to an employer, then they will not be
required to provide evidence of a valid NI
number to show their entitlement to work.
Nationals from all of these countries are exempt
from immigration control and are not subject to
sections 15 or 21.
However, some EU nationals are subject to
restrictions. Workers from the Czech Republic,
Estonia, Hungary, Latvia, Lithuania, Poland,
Slovakia or Slovenia have been free to work in
52
the United Kingdom since 1 May 2004, but the
worker may also be required to register under
the Worker Registration Scheme (WRS). Further
details are contained in Appendix B at page 64.
Equally, a section 15 excuse can be obtained for
a Romanian or Bulgarian national by checking
and copying their national passport or national
identity card. Nationals from these countries are
free to come to the UK, but unless exempt, are
subject to worker authorisation. Further details
are contained in Appendix B at page 64.
Employing asylum seekers
Q36 Can I employ asylum seekers?
A. On 23 July 2002, the Government ended the
employment concession for asylum seekers.
Before this date, asylum seekers could apply for
permission to work in the UK if they had not
received an initial decision within six months of
applying for asylum. Once granted a form of
leave, there were no restrictions placed on the
type of work they could undertake.
As a result of the ending of the concession,
any asylum seeker who made an initial asylum
application after 23 January 2002 is not able
to undertake any form of paid or unpaid
employment, unless they have been granted the
concession by the Home Office in exceptional
circumstances. Each case is considered on its
individual merits and it would be difficult to
give a definitive list of circumstances where
permission to work would be granted. However,
it would be appropriate to grant an asylum
seeker permission to work if their claim remains
outstanding for longer than 12 months without
a decision being made on it and where no delay
is attributed to the asylum seeker.
Any asylum seeker who was granted the
concession before 23 July 2002 will be able to
work until they have received a final decision in
the case where no leave is granted and all appeal
rights have been exhausted. If they granted leave
to enter or remain in the UK, they will no longer
 be an asylum seeker, and will be provided with
new documents by the Border and Immigration
Agency to demonstrate their entitlement to work.
Since the Government has abolished the
concession, a decreasing number of asylum
seekers are permitted to work in the UK.
Q37 How will I know if an asylum seeker is able
to work?
A. Since 1 May 2004, any asylum seeker who is
able to work must demonstrate this through
their Application Registration Card (ARC). This
will state on the front and back ‘Employment
Permitted’ if they are able to work. A new type
of ARC, with the words ‘Allowed to Work’
will be issued soon. Both versions will be in
circulation for some time. To have an excuse
against liability to payment of a civil penalty you
must verify an ‘Employment Permitted’ ARC
with the Employer Checking Service.
Q38 What if an individual presents me with a
Standard Acknowledgement Letter (SAL),
or IS96W letter, which states that they are
entitled to work?
A. You should not employ anyone on the basis
of checking either of these documents, as they
will not demonstrate the person is entitled to
work and will not give you an excuse against
liability to pay a civil penalty. Any asylum
seeker who is able to work will need to produce
their “Employment Permitted” Application
Registration Card (ARC) to demonstrate this.
If a job applicant is an asylum seeker who can
work, but does not have an ARC, you should
advise them to call the Border and Immigration
Agency on 0151 237 6375 for further
information about how to obtain one.
Q39 I am already employing an asylum seeker,
who I employed on the basis of seeing
their SAL or IS96W. Should I ask for an
Application Registration Card (ARC), or
conduct ongoing checks?
53
A. No. If your existing employee produced a
Standard Acknowledgement Letter (SAL) which
was stated that the holder had permission to
work, or an IS96W letter prior to employment
which commenced before 1 May 2004 and
you established a defence for that person
under section 8 of the 1996 Act, then you will
not need to ask them for an ARC during the
course of that employment. You will still have a
defence under section 8.
Q40 What happens if an asylum seeker is given
leave to enter or remain and how can they
prove their entitlement to work in the UK?
A. Asylum seekers who are successful in their asylum
claim are awarded Refugee Status. Exceptional
leave to enter, or remain in the UK is a category
of leave previously granted to asylum seekers
on compassionate or humanitarian grounds. On
1 April 2003, Exceptional Leave was replaced
by two different forms of status, Humanitarian
Protection and Discretionary Leave. These
various categories of leave may be granted for a
limited period of time or indefinitely. Individuals
granted such leave may stay and work here as
long as this leave remains valid.
Asylum seekers who have been granted limited
leave to enter or remain in the UK may be
able to demonstrate their eligibility to work by
showing a single document, or a combination of
the following documents from List B:
These can be:
• A passport or travel document endorsed to
show that the holder is allowed to stay in the
United Kingdom and is allowed to do the type
of work in question, provided that it does not
require the issue of a work permit.
• A Biometric Immigration Document issued
by the Border and Immigration Agency to the
holder which indicates that the person named
in it can stay in the United Kingdom and is
allowed to do the work in question.
 • An Immigration Status Document issued
by the Home Office or the Border and
Immigration Agency to the holder with
an endorsement indicating that the person
named in it can stay in the United Kingdom,
and is allowed to do the type of work in
question, when produced in combination
with an official document giving the person’s
permanent National Insurance (NI) number
and their name issued by a Government
agency or a previous employer.
• A letter issued by the Home Office or the
Border and Immigration Agency to the holder
or the employer or prospective employer,
which indicates that the person named in it
can stay in the United Kingdom and is allowed
to do the work in question when produced
in combination with an official document
giving the person’s permanent NI number and
their name issued by a Government agency or
a previous employer.
Asylum seekers who have been granted
indefinite leave to enter or remain in the UK
(which means that they have no time limit on
their stay in the UK) may be able to produce
documents from List A. Once they can produce
a List A document, an employer who checks this
document will have an excuse for the remainder
of that person’s employment. These can be:
• A Biometric Immigration Document issued
by the Border and Immigration Agency to
the holder which indicates that the person
named in it is allowed to stay indefinitely in the
United Kingdom, or has no time limit on their
stay in the United Kingdom.
• A passport or other travel document endorsed
to show that the holder is allowed to stay
indefinitely in the United Kingdom, has the
right of abode, or has no time limit on their
stay in the United Kingdom.
• An Immigration Status Document issued
by the Home Office or the Border and
54
Immigration Agency to the holder with an
endorsement indicating that the person named
in it is allowed to stay indefinitely in the
United Kingdom or has no time limit on their
stay in the United Kingdom, when produced
in combination with an official document
giving the person’s permanent NI number and
their name issued by a Government agency or
a previous employer.
• A letter issued by the Home Office or the
Border and Immigration Agency to the holder
which indicates that the person named in it
is allowed to stay indefinitely in the United
Kingdom when produced in combination
with an official document giving the person’s
permanent NI number and their name issued
by a Government agency or a previous
employer.
There may be asylum seekers who have been
awarded leave to enter or remain in the UK,
but require a NI number to complete their
combination of documents to demonstrate
their eligibility to work in the UK. However, the
Government has introduced a scheme which
gives asylum applicants the opportunity to
complete the NI number application form at
their asylum interview.
If the applicant is subsequently granted leave
to enter or remain, they will automatically be
allocated a NI number by the Department
for Work and Pensions. This negates the need
for applicants granted leave to subsequently
complete a separate Evidence of Identity
Interview and ensures that they receive
documentation confirming their status and NI
number simultaneously.
If the individual does not complete the
application form at their asylum interview
for any reason, they can apply for one at their
nearest Jobcentre Plus, via:
www.jobcentreplus.gov.uk following their
grant of status.
 Q41 Are failed asylum seekers allowed to work
pending other applications or removal from
the UK?
A. It is not the Border and Immigration Agency’s
policy to allow failed asylum seekers to work.
Failed asylum seekers are not entitled to work in
the UK once their appeal rights are exhausted
unless they have been granted leave to remain
in the UK in a capacity that permits them to
undertake the work in the UK. If an asylum
seeker had obtained permission to work through
the employment concession and then he or she
exhausted their appeal rights, but continued to
work, then they would not be working legally in
the UK unless they otherwise have been granted
leave that permits them to undertake the work
in the UK. Even if an individual continued
to hold an ARC that was endorsed with
‘employment permitted’ this would not render
any employment that he or she undertook in the
UK as legal.
The “Work Permitted” ARC must be verified by
the Border and Immigration Agency Employer
Checking Service to ensure that the asylum
seeker has an outstanding claim and is entitled
to work for an employer to have an excuse.
The follow up checks must be repeated within
a 12 month period in order for the excuse to
be retained. Details of the Employer Checking
Service are on page 13 or through the Border
and Immigration Agency website via:
www.bia.homeoffice.gov.uk/employers/
employersupport
Employing European Economic Area
workers
Q42 Do A8 nationals who are agency and/or
temporary workers need to register on the
Worker Registration Scheme (WRS)?
A. A8 workers who are employed on a short-
term or temporary basis by agencies or labour
providers should, unless they are exempt,
55
register with the Border and Immigration
Agency within one month of starting work for
the agency. They should register as soon as they
start work and, for the purposes of registration,
the agency or labour provider will be the
employer if it pays the worker’s wages.
Further details and guidance for labour
providers and temporary workers are available
from the Border and Immigration Agency
website and information on the WRS can also
be downloaded.
Q43 Can I accept an identity card from any EEA
member state in order to have an excuse
against liability to pay a civil penalty?
A. If your prospective employee presents you
with an identity card, you must check that this
describes the holder as a national or citizen
of the relevant EEA country. Some EEA
countries issue identity cards to individuals
who are resident in their country, but who are
not nationals. These individuals will usually
have cards which make it clear that they are not
nationals of the EEA country concerned, and
these will not demonstrate a person’s entitlement
to work, or give you an excuse against liability to
pay a civil penalty.
If you have any doubts about whether an
identity card allows the holder to work or
rightfully belongs to your prospective employee,
you should ask that person to produce their
national passport. If you still have doubts about
whether that person is permitted to work in the
UK, having carried out all the steps on pages
8-10, then you are entitled to refuse employment
to that person until they can appropriately
demonstrate their entitlement.
Further information about documents from
EU countries, Iceland and Norway are available
from the Council of the European Union
website via:
www.consilium.europa.eu/prado/
 Q44 Can I have an excuse against liability to pay
a civil penalty by accepting an EEA/UK/
Swiss passport which has expired?
A. The Border and Immigration Agency’s guidance
is that EEA documents, such as passports,
produced to employers should be current (as
opposed to being expired). However, if the holder
is unable to produce a current EEA document
then you can accept an out-of-date UK British
passport, or out-of-date EEA/Swiss passport,
provided you, have carried out the reasonable
checks set out on pages 8-10 and are satisfied that
the offered original document is valid, genuine
and rightfully belongs to the applicant. The
employer should take particular care with regard
to the document’s photograph (which may be
rather old) when comparing it with the visible
appearance of the prospective employee.
Q45 Is the UKRP the same as the Registration
Certificate issued to EEA nationals?
A. No. The two documents are different. A UK
Residence Permit is an endorsement in the form
of a vignette, visa, or sticker, usually placed in
a passport issued to non-EEA nationals who
have been granted leave to enter or remain
in the UK for longer than six months under
the Immigration Rules. An EEA Registration
Certificate is a free standing document issued only
to EEA and Swiss nationals by the Border and
Immigration Agency to confirm their residence in
the United Kingdom under European law.
Q46 What is a residence card?
A. Residence cards are issued to family members
of EEA nationals who are not themselves EEA
nationals. They confirm the holder’s rights of
residence under European law on the basis of
their relationship with the EEA national. The
holder of such a residence card can work in the
UK without restriction. Residence cards take the
form of a vignette endorsement placed in the non-
EEA national’s passport or on an Immigration
Status Document where one is not available. The
residence card is issued with a validity of 5 years.
56
Q47 Can a non-EEA national who was formerly
a family member of an EEA national
maintain their entitlement to work in the
UK?
A. When a non-EEA national ceases to be the
family member of an EEA national, for
example, due to the grant of a divorce absolute,
they would generally cease to have a right of
residence in the UK under EU law. As a non-
EEA national family member gains their right
of residence and access to the labour market
through residing with their EEA family member
in the UK, then when this relationship ceases,
they would no longer have a right to work in
the UK unless they have a work entitlement in
their own right such as when they have retained
a right of residence under European law. This
could be based on circumstances such as where
the non-EEA national was the principal carer of
any children from the relationship. Such a non-
EEA national would have a continued right of
residence on this basis.
Q48 What is a Certificate of Application?
A. Family members of nationals from EEA
countries and Switzerland may apply for
residence documents, such as a residence card,
which may demonstrate their entitlement to
work in the UK. However, under European
legislation, many are also entitled to engage in
employment whilst these applications are under
consideration, and before residence documents
have been issued by the Border and Immigration
Agency. The Border and Immigration Agency
will provide such applicants with a letter of
acknowledgment, which is the Certificate of
Application.
To verify the entitlement of the holder to
work in the UK and to have an excuse, you
should contact the Employer Checking Service
in respect of any prospective employee
who produces a Certificate of Application
to demonstrate an entitlement to work for
you. The Certificate of Application will only
establish an excuse when checked if it has been
 verified by the Employer Checking Service as
permitting work in the UK and is less than six
months old. As it is a List B document, you
must repeat this check within 12 months to have
the excuse. Details of the Employer Checking
Service are on page 13 or through the Border
and Immigration Agency website at:
www.bia.homeoffice.gov.uk/
employingmigrants
Employing students
Q49 Are non-European Economic Area students
allowed to work in the UK?
A. Students from outside the EEA who are
over the age of 16 are permitted to take
some employment in the UK, providing their
conditions of entry to the UK allow this. Those
studying here who have entered the UK as
‘student visitors’ are not allowed to work.
There are strict conditions on the type of work
they can take while they are studying in the UK.
You can employ a student:
• for up to 20 hours per week only during
term time. (The only exception to this is where
a student may have been placed with you to
meet the definition of their sandwich course
or internship); or
• full-time only outside of their term time; and
• they must still have valid leave.
A student from outside of the EEA must not:
• engage in business; or
• engage in self-employment; or
• provide services as a professional
sportsperson or entertainer; or
• pursue a career by filling a permanent full-time
vacancy.
57
The Government recognises that on some
occasions it may be difficult for employers to
verify an applicant’s student status or otherwise.
You should remember that the onus remains on
the student, as it does for all of your prospective
employees, to demonstrate that they are able to
work for you legally.
You are entitled to request extra documents to
reassure yourself that the person in front of you
is a student. This could include an authorised
letter from their place of study confirming their
status.
Q50 Students from outside the EEA can work for
20 hours per week during term time. How
do you define term-time?
A. Students should be able to provide evidence
of the term dates for their course if required.
However, there may be periods of time where
a student is not expected to attend classes,
but when they should be spending their time
studying, writing a dissertation, or preparing for
exams as part of their course. They should not
be working full-time during this period.
Q51 How does the 20-hour rule affect non-EEA
postgraduate students?
A. Postgraduates do not follow the normal pattern
of students, and it is accepted that their course
may involve research work as part of their
course requirements. However, researchers who
are specifically employed by an institute will
require a work permit, whereas junior Research
Fellows in receipt of scholarships are essentially
treated as students and are subject to restrictions
on the hours that they can work.
Q52 What about work placements for non-EEA
students as part of their course?
A. There are sandwich courses for degree level
students, which are courses that include a clearly
defined work placement and are approved by
the academic institution providing the course.
Students subject to conditions restricting
 employment will be allowed to follow a
sandwich course provided that:
• the course leads to a degree or to a
qualification awarded by a nationally
recognised examining body; and
• the work placement does not extend beyond
the end of their course.
There may also be opportunities for an
internship - a short period of paid work, which
an employer may offer a job applicant. The
internship may be offered to a student on a first
or higher degree course in the UK, even if the
prospective permanent employment is outside
the UK. A student who is subject to conditions
restricting employment will be allowed to
undertake an internship provided that they
satisfy all of the following conditions:
• the student has not previously undertaken an
internship with the employer;
• the internship is for no longer than three
months;
• it is an established part of the employer’s
recruitment procedure;
• it offers pay and conditions comparable to
those for a ‘resident worker’ doing the same
work; and
• it is completed within their current period of
leave as a student.
Q53 Can a non-EEA student with valid leave
to enter or remain in the UK defer his/her
studies?
A. Students who have enrolled on a course may
sometimes defer the start, or a subsequent part
of a course. This may happen for a variety of
reasons outside the control of the student, for
example, compelling personal circumstances
(e.g. an illness or an accident), or as a result of
a decision made by the institution which they
58
are attending. In all cases, you should retain
documentary evidence of the circumstances,
and the application should also be supported by
the institution.
If an individual has been granted leave to
remain as a student, then they must apply to
have their leave varied if they are to remain in
the UK for a different purpose.
Voluntary activity
Q54 Can asylum seekers volunteer their services?
A. Asylum seekers are allowed to volunteer, as long
as they are carrying out the work on behalf of
a registered charity, voluntary organisation or
body that raises funds for either. Any voluntary
activity undertaken should not amount to either
employment, or job substitution.
Q55 Can I be liable for payment of a civil penalty
if I am found to be providing voluntary
work to someone without permission to
work in the UK?
A. As an employer, you place yourself at risk of
incurring a civil penalty if you employ a person
aged 16 or over who is subject to immigration
control and who has no permission to work in
the UK, or who works for you in breach of their
conditions of stay in the UK.
The Immigration Rules prevent certain
categories of entrant from engaging in voluntary
work or voluntary activity, such as visitors and
au pairs. However, the legal distinction between
an employee and a volunteer can be quite
complex and there are huge differences between
the types of voluntary work or voluntary activity
that people can be engaged in. The Border and
Immigration Agency would not wish to give
advice which might lay voluntary organisations
open to prosecution for employing people
illegally. Therefore, the Border and Immigration
Agency strongly recommends that organisations
seek independent legal advice for their specific
volunteering activity.
 Q56 What is the difference between
‘volunteering’ and ‘unpaid work’? For
example, if a posting entitles a participant
to observe what happens in a clinical setting
in the UK, does this contravene the ‘no
work’ endorsement stamp in their passport?
A. Voluntary activity should not amount to either
employment, or job substitution. There is a
fundamental difference in the nature of the
activity itself and the specific exclusion of
work (whether it is paid or unpaid) as defined
in the individual passport, should not include
voluntary activity where it is clearly undertaken
as such. Our guidelines for volunteers are:
• there should be no payment, other than
reasonable travel and meals expenditure
actually incurred (not an allowance for the
same);
• there should be no contractual obligations on
the volunteer;
• the volunteer is providing a service for a
registered voluntary or charitable organisation
(or organisation that raises funds for either);
• the service is not a substitute for employment
(i.e. fulfilling a role that a salaried worker
would normally fulfil).
Q57 Are failed asylum seekers allowed to
volunteer pending removal or other
applications?
A. The Border and Immigration Agency
encourages volunteering for those asylum
seekers who are legally residing in the UK,
as this can provide asylum seekers with a
purposeful activity and an opportunity to
participate in the community whilst awaiting
the outcome of their asylum claim. However,
on the grounds that a failed asylum seeker
should not be in the United Kingdom at all, he
or she should not be volunteering following
a final decision on their claim, or if they have
exhausted all their appeal rights. Although there
59
is no specific legal power to prevent a failed
asylum seeker from volunteering, the normal
course of action should be for the Border and
Immigration Agency to issue removal directions
and to discourage further voluntary activity.
Q58 Can anyone at the end of the immigration
application process volunteer?
A. It is accepted that foreign nationals who are
in the UK may wish to volunteer during their
time here, but may have restrictions on their
entitlements/immigration status. We distinguish
between unpaid work and volunteering and we
maintain that there is a fundamental difference
in the nature of the activity itself, although this
exclusion should not include voluntary activity
where it is clearly undertaken as such. However,
those individuals who no longer have leave to
remain in the UK, for example, those who have
overstayed their granted leave or exhausted their
appeal rights, should not still be in the country
or volunteering.
Further questions
Q59 I am currently employing someone under
the Working Holiday Maker scheme. How
can I apply for permission to employ them
after their visa expires?
A. One of the conditions of the application for
Working Holidaymaker scheme is that the
individual must plan to leave the UK at the end
of his or her stay. There is no provision for an
extension of stay as a Working Holidaymaker
to be granted beyond the validity of the visa
on which they entered the United Kingdom.
However, the individual may be eligible to
switch into work permit employment (after 12
months) in the UK, but this would only be if his
occupation is on the list of designated shortage
occupations. Working Holidaymakers may
currently also switch into Innovators and the
Highly Skilled Migrant Programme (HSMP) at
any time during their stay in the UK. In all cases,
the application for the new visa should be made
before the old visa expires.
 Q60 Isn’t the Border and Immigration Agency
discriminating against those British citizens
who have, or are in the process of gender
transitioning? The introduction of the
requirement to show a combination of the
National Insurance number and a birth
certificate may cause problems for a person
in this situation.
A. The Border and Immigration Agency accepts
that the presentation of a National Insurance
number and a second document, such as a
birth certificate, may present problems for
an individual who is undergoing, or who has
completed the process of gender transitioning.
However, it is possible for a UK national to
obtain a UK passport with their new identity,
and when checked this single document will
provide your excuse.
To apply for the passport, the individual would
need to send their birth certificate and a Change
of Name Deed or Statutory Declaration
regarding their change of name to the Identity
and Passport Service. Where the individual is in
the process of gender transitioning, they would
also need a letter from their doctor/consultant
confirming they had lived in their chosen gender
and that the change is likely to be permanent.
Where the operation has already taken place,
written confirmation would be required that
the person has had the operation and that the
change is permanent.
All cases would then be considered individually.
Where the application is successful, the passport
would then be issued for their new identity.
The Points Based System
Q61 When did the Points-Based System open?
A. The Points-Based System (PBS) began to roll
out on 29 February 2008. From that date,
migrants who were already in the UK were able
to apply under the Highly Skilled Tier of the
PBS, which does not require a sponsor.
60
Also from 29 February, organisations were
able to apply for a Sponsor Licence to engage
Skilled Workers and Intra-Company
Transferees under Tier 2 of the PBS.
Prospective sponsors wishing to engage
migrants in other parts of the PBS (including
students) will be able to apply for a licence at a
later date, which we will announce in due course.
Tier 2 itself will open in Autumn 2008, which
is when sponsors will first be able to use their
sponsor licences to bring workers to the UK.
Q62 What is sponsorship under the Points-Based
System?
A. The Government began introducing an
Australian-Style Points-Based System (PBS) to
control migration by people wishing to work or
study here on 29 February 2008.
Crucial to the new system is sponsorship. Other
than in the highly-skilled Tier of PBS, known as
Tier 1, all migrants wishing to come here under
PBS need a sponsor, i.e. a reputable employer or
college in the UK which wishes to take them on.
In order to become a sponsor, the employer
or college needs a licence from the Border and
Immigration Agency. In order to get one, it
needs to show, among other things, that it is a
trustworthy organisation and that it is willing
and able to perform the duties that will be
required of it if it is given a licence. These duties
include informing us if migrants do not turn
up for their job or course, or if they break their
immigration conditions or go missing.
All sponsors are rated “A” or “B,” depending
on their track-record in employing or teaching
migrants. B-rated sponsors have to comply with
a time-limited action plan, which will set out the
steps they must take in order to gain an A-rating.
If they do not comply with it, they will be likely
to lose their licence altogether.
 Appendix B
EMPLOYING NATIONALS FROM THE EUROPEAN ECONOMIC AREA

Nationals from European Economic Area (EEA)
countries and Switzerland can enter the UK without
any restrictions. You should not, however, employ any
individual on the basis of his or her claim to be a national
from an EEA country. You should also be aware that
not all EEA nationals can work in the UK without
restrictions. These are dealt with in more detail below.
You should require nationals from all EEA countries
and Switzerland to produce an official document
showing their nationality and check this document to
have the excuse. This will usually be either a national
passport or national identity card. Some nationals
from EEA countries and Switzerland may also be
able to produce a residence permit issued by the
Border and Immigration Agency which confirms
their right to reside and work here. All of these
documents are included in List A and will provide
you with an excuse against liability for a civil penalty
if checked and copied.
What about Accession State workers?
On 1 May 2004, ten new countries joined the
European Union and became part of the EEA.
Nationals from these countries are also free to come
to the UK to live and seek work here. In 2004, the
Government established a Worker Registration Scheme
to monitor the participation of workers from eight of
these countries in the UK labour market, as follows:
Czech Republic Lithuania
Estonia Poland
Hungary Slovakia
Latvia Slovenia
Workers from these countries are often referred
to as ‘Accession State workers.’ These countries
are referred to as ‘A8 countries’ throughout the
remainder of this guidance and workers from these
countries are referred to as ‘A8 workers’.

Which EEA nationals can work in the UK Although employers are not legally required to conduct
without restriction? these checks, we recommend that you make sure that a
person from one of the A8 countries who starts working
Austria * Italy * for you registers with the Border and Immigration
Belgium * Liechtenstein Agency within one month of starting work, unless they
Cyprus* Luxembourg * are exempt from the requirement to do so.
Denmark * Malta*
Finland * Netherlands * The Border and Immigration Agency will issue the
France * Norway following documents to show that the person has
Germany * Portugal* been registered on the WRS.
Greece * Spain *
Iceland Sweden *
Ireland * UK*

Nationals from these EEA countries can enter

and work freely in the UK without restriction.
Their immediate family members are also able
to work freely in the UK while their adult EEA
family member is legally residing and working here.
However, you should still check their documents to
demonstrate this entitlement. Those countries marked
with a star are also members of the European Union.

Since 1 June 2002, nationals from Switzerland and

their family members have also had the same free
movement and employment rights as EEA nationals.

61
 Who is exempt from registering on the
Worker Registration Scheme (WRS)?
Some A8 workers will be exempt from the
requirement to register. You should ask these workers
to provide you with documentary evidence of their
exemption.
Checking and recording one of the documents
listed below will not only provide a defence from
conviction for employing an unregistered A8 worker
under The Accession (Immigration and Worker Registration)
Regulations 2004, but it will also provide an ongoing
excuse for your worker under section 15.
You should check for one of the following
documents:
• a Registration Certificate issued by the Home
Office confirming the holder is an EEA or Swiss
national; or
• a national passport or travel document containing
an endorsement which states that the holder is
also a dual national of the UK, Switzerland or one
of the EEA countries (other than the relevant
accession states); or
• a national passport or travel document containing a
valid endorsement which states that the holder is a
family member of an EEA or Swiss national (unless
the family member is also an accession worker
subject to worker registration); or
• a national passport or travel document containing
a valid endorsement which shows that the holder
has indefinite or limited leave to enter or remain
in the UK, with no immigration restrictions on
employment.
You should check, copy and retain a copy of one of
these documents if your worker is exempt from the
registration scheme to have an excuse under section
15.
The following categories are also exempted from
registering:
62
• A8 nationals here on a self-employed basis (for the
purpose of the Worker Registration Scheme, you
will employ an A8 worker if you directly pay their
wages); and
• A8 nationals who have been employed legally
without interruption in the UK for 12 months. Any
periods of unemployment within those 12 months
do not exceed 30 days in total.
Those who have worked legally in the UK for more
than 12 months can demonstrate this by showing
official documents such as their work permit, or
previous registration certificates. These can be copied
as evidence of the prospective employee’s exemption.
What about agency and temporary
workers?
A8 workers who are employed on a short-term or
temporary basis by agencies or labour providers
should also, unless they are exempt, register with the
Home Office within one month of starting work for
the agency. They should register within one month
starting work and, for the purposes of registration,
the agency or labour provider will be the employer if
it pays the worker’s wages.
Further details and guidance for labour providers and
temporary workers is available from:
www.bia.homeoffice.gov.uk/workingintheuk
Newer members of the European Union
and the EEA
On 1 January 2007, Bulgaria and Romania joined the
European Union, and also became part of the EEA.
These countries will be referred to as ‘A2 countries’
throughout the remainder of this guidance and
workers from these countries will be referred to as
‘A2 workers’.
A2 workers are free to come to the UK, but unless
exempt, they will be subject to worker authorisation.
This means that they are only able to work in the UK
if they hold a valid accession worker authorisation
document or if they are exempt from authorisation.
 Who is exempt from the A2 authorisation
requirements?

Some A2 workers are exempt from the requirement

to obtain a work authorisation document. These
people may have leave to remain that was obtained
before 1 January 2007 and that gives them permission
to undertake the work in question. They will be able
to obtain a registration certificate confirming their
status after 1 January 2007, if required.

There will be others who have arrived, or applied for

work, after 1 January 2007 who automatically have
entitlement to work in the UK and are exempt from
authorisation. You should require these workers to
provide you with documentary evidence of their
exemption. By checking and recording one of the
documents or endorsements listed below, you will
not only establish a defence from conviction for
employing an unauthorised A2 worker, but it will also
provide an excuse in relation to that worker under
section 15:

• those with permission to work by means of a work

permit or leave to remain giving permission to
work in the United Kingdom before the date of
Accession; or

• a national passport or travel document containing a

valid endorsement which states that the holder is a
family member of an EEA or Swiss national; or

• those who are highly skilled and are in possession

of a registration certificate confirming that they
have unrestricted access to the labour market.
Those falling into this category will be those who
meet the existing criteria for admission under
the Highly Skilled Migrants Programme, the
International Graduate Scheme (this replaced the
Science and Engineering Graduates Scheme from 7
May 2007) and the Scottish Graduates Scheme; or
• students that intend to work less than 20 hours a
week during term-time and are in possession of
a yellow registration certificate confirming that
he or she has this restricted permission to take
employment; or
• any Bulgarian or Romanian national who has been
given permission to work, and has worked under
that permission legally on a continuous basis of
twelve months, obtains full movement rights as a
worker under EU law. They are then exempt from
a requirement to obtain a worker authorisation
document; or
• a national passport or travel document containing
an endorsement which states that the holder is also a
dual national of the UK, Switzerland or one of the
EEA countries other than Bulgaria or Romania; or

63
 • a national passport or travel document containing a • A2 nationals on the Seasonal Agricultural Workers
valid endorsement which shows that the holder has Scheme (SAWS) will be issued with a SAWS card; or
Indefinite or Exceptional Leave to Enter or Remain
in the UK, or has been granted Limited Leave to
Enter or Remain with no immigration restrictions
on employment; or

• a national passport or travel document containing a

valid endorsement which shows that the holder has
Leave to Enter or Remain in the UK, or has been
granted Limited Leave to Enter or Remain with
specified restrictions on employment which are
being observed; or

• A2 nationals who are highly skilled and hold a valid

registration certificate that includes a statement
that he or she has unconditional access to the UK
labour market; or

• A2 nationals here on a self-employed basis (for the

purpose of authorising workers, you will employ an
A2 worker if you directly pay their wages); or

• A2 nationals posted here on a temporary basis, but

only when working for the company that they are
posted to; or

64
 • A2 nationals who have been employed without
interruption in the UK legally for 12 months before
31 December 2006 and had been working without
interruption throughout the period of 12 months
leading up to that date (this includes any periods of
unemployment within those 12 months that do not
exceed 30 days in total); or
• A2 nationals who are employed without
interruption in the UK legally for 12 months on,
or after 31 December 2006, will be exempt at the
end of that period (this includes any periods of
unemployment within those 12 months that do not
exceed 30 days in total).
Those who have worked legally in the UK for more
than 12 months can demonstrate this by presenting
official documents such as their work permit, or
previous authorisation certificates. These can be
copied as evidence of the prospective employee’s
exemption.
What should I do if I want to employ an A8
or A2 worker?
When you take on a new worker from one of the ten
countries above, you should:
1. Establish an excuse
Check that the worker is a national from one of these
ten countries, so you do not risk liability to pay a civil
penalty under section 15 of the 2006 Act. You can do
this by them producing their EEA national passport
or national identity card and then follow the steps on
pages 8-10.
2. Ensure that your prospective A2
employee is authorised
An A2 worker will require authorisation before they
begin working for you, unless they are exempt. A
worker authorisation document for an A2 worker
provides you with evidence of authorisation from
the Border and Immigration Agency that the holder
is entitled to work in the UK and whether they are
subject to any work conditions. The authorisation will
be in the form of a card or a certificate, which will set
65
out any conditions on their employment. Where the
A2 worker is not subject to the worker authorisation,
they may be issued with a registration certificate
that states they have unconditional access to the UK
labour market, or may be able to demonstrate their
exempt status by other means.
To establish a defence against prosecution under the
Accession (Immigration and Worker Authorisation)
Regulations 2006, you should take a copy of the
relevant worker authorisation document before
the A2 worker starts working for you. You should
otherwise take copies of documents that establish
that the person is exempt from authorisation.
3. Advise your A8 employee to
register and retain your copy of the
application form and registration
certificate
Unlike an A2 worker, an A8 worker may start
work for you without registering first, but your A8
employee should apply to register with the Border
and Immigration Agency within one month of
starting their employment. To do this, you will need
to provide evidence of their employment (a contract
or letter). You should then take a copy of the
completed application form before your worker sends
this to the Border and Immigration Agency. You
should keep this copy until you receive notification
from the Border and Immigration Agency that your
worker has been registered. Once the worker has
successfully registered, the Border and Immigration
Agency will send you a copy of the registration
certificate confirming this. You should retain the copy
sent to you.
What happens if I employ an unauthorised
or unregistered EEA worker?
An employer who employs any non-exempt A2
workers without authorisation may be liable to
prosecution under The Accession (Immigration and
Worker Authorisation) Regulations 2006. On conviction,
the employer may be liable for a fine of up to £5,000.
If the fine is not paid, the Border and Immigration
Agency may pursue any unpaid fines through the
courts.
 If you continue to employ a non-exempt unregistered
national from one of the A8 countries for more
than one month without retaining a copy of their
application form or their certificate of registration,
you may commit a criminal offence under The
Accession (Immigration and Worker Registration) Regulations
2004. The maximum penalty on conviction is £5,000.
Similarly, if the Border and Immigration Agency
notifies you that your employee’s application has been
refused and you continue to employ that person, you
may also commit an offence.

66
 Appendix C
GUIDE TO UK GOVERNMENT IMMIGRATION STAMPS AND
ENDORSEMENTS

This appendix provides you with comprehensive United Kingdom Residence Permit
details of the immigration stamps and endorsements
that the UK Government places in a person’s The United Kingdom Residence Permit (UKRP) is a
passport or travel document when they are from form of endorsement introduced by the Home Office
outside the European Economic Area (EEA). It will in 2003. It is used to endorse passports and other travel
help you to understand what you need to check to documents belonging to nationals from outside the
ensure that the person in question is permitted to do EEA, and is also placed on Home Office Immigration
the type of work you are offering. Status Documents to show that a person has been
granted leave to enter or remain in the United Kingdom.
If you need further assistance when presented with The UKRP has now replaced all of the Home Office
any of the immigration stamps or endorsements, ink stamps which are shown later in this section and
then you should call the Employers’ Helpline for which state ‘Leave to Remain’, but you may still be
further advice on 0845 010 6677. An operator will presented with older documents with valid ink stamps.
provide you with advice about whether a stamp
or endorsement permits the holder to take the The UKRP is issued to those nationals who intend to
employment you are offering. You should also stay here for longer than six months. It is not issued
consult the following website for further updates: to any non-EEA nationals who are required to obtain
www.bia.homeoffice.gov.uk/employingmigrants a visa or entry clearance (see page 75) to enter the
United Kingdom before they travel here.
Immigration Officers working at ports of entry
continue to use a variety of wet ink endorsements, The UKRP contains a number of security features
examples of which are provided in this section. which are highlighted overleaf to help you recognise
and identify what they look like.
United Kingdom Residence Permit - Security Features

OPTICALLY VARIABLE INK

This area exhibits a colour change when depending on
INTAGLIO PRINT and LATENT IMAGE the angle of viewing. The colour shift is from pink to
All of the overprint uses a raised process gold. Both colours should be seen.
known as intaglio. This gives a characteristic
rough texture. The letters “UK” appear when LETTERPRESS SERIAL NUMBER
viewed at an oblique angle A unique process is used to print the serial
number. Note the hard outline of the characters
caused by the pressure of the printing.

KINEGRAM
This is an intricate laser produced foil feature.
A high degree of detail and vibrancy should be
INTAGLIO PRINT
seen as the angle of viewing changes.
The overprint including the extra small “EU”
lettering is produced using intaglio. Note the
high degree of detail within the crest design.

The United Kingdom is shortly to introduce the new European Union style vignette residence permit. It will be
used to identify those persons who have permission to stay in the United Kingdom and will sometimes contain an
image of the holder. There are a number of security features which identify a genuine vignette. Extensive use of
intaglio print for all of the overprinted areas including a latent image, extra small print and optically variable inks.
The presence of a kinegram makes the vignette difficult to scan and the use of secure paperstock containing
random fibres (two colour visible - red and blue) further add to the anti-counterfeiting measures. The background SECURE PAPER and BACKGROUND PRINT
print is intricate in design and is printed using rainbow print techniques. The paper used contains blue and red visible
fibres. The background print contains high detail
and uses subtly merging colours (rainbow print).

67
 Indefinite leave to enter or remain, You may also see the following endorsements which
exemption from immigration control, demonstrate that a person has this status. These
or no time limit on a person’s stay in the endorsements are being phased out, but when
United Kingdom checked will still provide you with an excuse if they
are presented to you in a valid passport by the holder.
Any individual who is granted indefinite leave to
enter or remain in the UK, who is exempted from
immigration control, or who has no time limit on
their stay here may stay and work in the UK as long
as they like. There are no immigration restrictions
placed on the type of job you may offer them.

The Home Office began endorsing passports, or

Immigration Status Documents with the UKRP from
December 2003 to demonstrate that the holder has
indefinite leave to enter or remain here (see below).

The holders of travel documents who have been

granted indefinite leave to enter or remain here may
have a printed endorsement in their travel document
stating: ‘There is no time limit on the holder’s stay in the
United Kingdom.’

68
 Those asylum seekers who have been awarded
refugee status or leave to stay here under a form
of temporary protection, will not usually possess
a national passport endorsed with leave to enter or
remain in the UK.

In certain circumstances, they are able to apply to the

Home Office for a travel document. Examples of the
three Home Office travel documents are pictured below.

69
 Exceptional leave to enter or remain,
Discretionary Leave or Humanitarian
Protection
A person who has been granted Exceptional Leave,
Discretionary Leave or Humanitarian Protection by
the Home Office may have limited leave to enter or
remain here. You will be able to employ a person with
limited leave if the date shown on their endorsement
or stamp has not time expired. You should still
undertake the appropriate document checks to have
the excuse.
There are no restrictions placed on the type of work
you may offer them.
Limited Leave to Remain granted with no
immigration restrictions on employment
Certain qualified people and their dependants who
meet the requirements of the UK immigration rules
are granted leave to enter or remain here for a limited
period of time without being subject to employment
conditions.
You will be able to employ anyone with this status
if the date shown on their passport endorsement
or stamp has not time expired. There are no
immigration restrictions placed on the type of work
you may offer them. You should still undertake the
appropriate document checks to have the excuse.

Those individuals who do not possess a national

passport but have Home Office-issued travel
documents and who have been granted this status will
have printed wording in their travel document which
states: ‘Holder’s leave to remain in the United Kingdom was
varied by the Home Office.’

70
 Leave granted to work permit holders
and students
If a person has been granted leave to enter or remain
here as either a student or work permit holder, then
you can employ them if the date shown on their
passport stamp or endorsement has not time expired.
They are only permitted to undertake certain types
of employment in line with Immigration Rules and
you may become liable to a civil penalty or commit
an offence of knowingly employing an illegal migrant
worker if they work for you in breach of their
conditions. You should still undertake the appropriate
document checks to have the excuse.
You should follow the guidelines on pages 58-59 to
ensure you employ students legally. You will not be
able to rely upon checking a passport endorsement
alone to have an excuse for work permit holders. You
are also required to copy the work permit or letter of
permission issued by Work Permits UK.
71
Limited leave granted with specific types
of employment
Certain workers who meet the requirements of the
Immigration Rules and have been granted limited
leave to enter or remain in the UK may only be able
undertake specific forms of employment during their
stay here.
You can employ people in these categories only:
• while the date shown on their passport
endorsement or stamp has not time expired; and
• according to the specific types of employment they
may carry out here.
If a person is here with limitations on their stay,
then the stamp or endorsement in their passport will
indicate the specific employment the holder is limited
to taking while in the UK.
You may become liable to a civil penalty or commit
an offence of knowingly employing an illegal migrant
worker if they work for you in breach of their
conditions. You should still undertake the appropriate
document checks to have the excuse.
 Change of conditions
You may also be presented with the following ink
stamp, which was formerly used by Immigration
Officers to transfer a person’s conditions from an old
passport into a new passport.
If someone presents this ink stamp to you in their
passport, you should require them to produce their
previous passport containing their previous leave so
you can be sure that they are permitted to take the
employment you are offering. You may become liable
to a civil penalty or commit an offence of knowingly
employing an illegal migrant worker if they work for
you in breach of their conditions. You should still
undertake the appropriate document checks to have
the excuse.
72
Visas/entry clearance certificates
Nationals from certain countries are required to
obtain a visa or entry clearance certificate from UK
embassies before they travel to the UK. A list of the
countries can be found on the UK Visas website at:
www.ukvisas.gov.uk
If a person has been issued with a valid visa or entry
clearance and it has not expired, then they will not
need a UKRP or any of the previously indicated ink
stamps to demonstrate to you whether than can work
here.
 Stamps and endorsements which prohibit
working in the UK

Any non-EEA national who has the following

endorsements in their passport is not able to work
in the UK. You may be liable to payment of a civil
penalty and may commit an offence under section 21
if you employ a person on the basis of any of the
pictured stamps in their passports.

73
 Appendix D
FRAMEWORK FOR ASSESSMENT OF LEVEL OF CIVIL PENALTY

Nature of checks completed

Full Partial No
Maximum penalty of
£10,000 per worker
Reduced by
Reduced by
up to £1,250
up to £1,250
per worker, Maximum penalty of
3rd + No penalty per worker
with co- £10,000 per worker
reported
operation
Suggested minimum
OCCASION ON WHICH WARNING/PENALTY ISSUED

penalty of £7,500 per

worker
Suggested maximum
Maximum penalty of
penalty of £7,500 per
£10,000 per worker
worker
Reduced by Reduced by
Reduced by Reduced by
up to £1,250 up to £1,250
up to £1,250 up to £1,250
2nd No penalty per worker, per worker,
per worker per worker
with co- with co-
reported reported
operation operation
Suggested minimum Suggested minimum
penalty of £5,000 per penalty of £7,500 per
worker worker
Suggested maximum Suggested maximum
penalty of £5,000 per penalty of £7,500 per
worker worker
Reduced by Reduced by
Reduced by Reduced by
up to £2,500 up to £2,500
up to £2,500 up to £2,500
1st No penalty per worker, per worker,
per worker per worker
with co- with co-
reported reported
operation operation
No penalty and a Suggested minimum
warning letter may be penalty of £2,500 per
issued worker

74
 Appendix E
FLOWCHARTS FOR CARRYING OUT DOCUMENT CHECKS

This appendix aims to provide you with some Remember that you must see original documents and
examples of documents that prospective employees follow the specified steps set out on pages 8-10 to
may produce to you and describes the action you have the excuse.
should take when presented with certain documents
from List A and List B. The examples are not
exhaustive.

Flowchart for Employers: Registration certificate combination

Does the applicant have a certificate NO

of registration or certificate of
naturalisation as a British citizen?

Yes

This is not enough for an excuse on its own.

NO
Has the person got a document issued by the
Government Agency or a previous employer? For
example, a P45, P60, payslip or a NI number
card showing their NI number and name?

Yes

These documents together may provide an There is no excuse.

excuse as long as the names and other details
agree. You should ask the applicant to produce other
documents from List A or List B. If they cannot
You should photocopy or scan the documents do this, then you should not employ that person.
as described on pages 8-10 of this guidance.
You should retain part 2 of the P45. This
combination may provide you with an excuse for
the duration of the person’s employment.

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 Flowchart for Employers: Application Registration Card combination

Does the applicant have an Application

NO
Registration Card (ARC) issued by the
Border and Immigration Agency or the
Home Office? (See page 36 for details)

Yes

NO
Does it say on the front and back ‘Employment
permitted’ or ‘Allowed to work’?

Yes

This is not enough for an excuse on its own.

NO
Have you received verification from the Employer
Checking Service that the document presented
is valid?

Yes

These documents together will provide an There is no excuse.

excuse.
You should ask the applicant to produce other
You should photocopy or scan the documents documents from List A ort List B. If they cannot
as described on pages 8-10 of this guidance. do this, then you should not employ that person.
You should re-check the employee’s documents
within the next 12 months to have the excuse.

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 Flowchart for Employers: Birth or adoption certificate combination

Does the applicant have a full birth or

adoption certificate issued in the UK
which includes the names of one of their
NO
parents (the full adoption certificate
must include the names of one of their
adoptive parents) or a birth or adoption
certificate issued in the Channel
Islands, the Isle of Man or Ireland?

Yes

This is not enough for an excuse on its own.

Has the person got a document issued by a NO

Government Agency or a previous employer,
which contains their permanent NI number and
name (for example, a P45, P60, payslip or a NI
number card)?

Yes

These documents together may provide an There is no excuse.

excuse as long as the names and other details
agree. You should ask the applicant to produce other
documents from List A or List B. If they cannot
You should photocopy or scan the documents do this, then you should not employ that person.
as described on pages 8-10 of this guidance.
You should retain part 2 of the P45. This
combination may provide you with an excuse for
the duration of the person’s employment.

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 TERMS AND ABBREVIATIONS

A2 countries
Romania and Bulgaria joined the European Union on 1 January 2007.

A8 countries
Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia. These countries joined
the European Union and EEA on 1 May 2004.

A2 workers
Workers from the A2 countries who may be required to obtain authorisation from the Border and
Immigration Agency before they begin working in the UK, from 1 January 2007.

A8 workers
Workers from the A8 countries who may be required to register with the Home Office if they begin working
in the UK from 1 May 2004.

Asylum seeker
An individual with an outstanding claim for asylum under the 1951 United Nations Convention relating to the
Status of Refugees.

Application Registration Card (ARC)

The Application Registration Card is currently issued by the Home Office to all new asylum seekers. It is a
secure document which confirms evidence of the holder’s identity.

The Border and Immigration Agency

The Border and Immigration Agency is part of the Home Office. It administers immigration controls,
including work permit arrangements on behalf of the UK Government and also operates the Worker
Registration Scheme for A8 nationals and authorisation process for A2 nationals.

Defence
Section 8 provided a statutory defence from conviction for employing an illegal migrant worker, for those
employees taken on between 27 January 1997 and 28 February 2008.

Excuse
Section 15 provides a statutory excuse from payment of a civil penalty for employing an illegal migrant
worker, for those employees whose employment commenced on or after 29 February 2008.

European Economic Area (EEA)

The EEA countries are the EU countries listed below, plus Iceland, Norway and Liechtenstein. Switzerland is
not a member of the EEA, but since June 2002, Swiss nationals and their families benefit from similar rights
to EEA nationals on freedom of movement and work.

European Union (EU)

The EU countries are Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, France,
Finland, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands,
Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.

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 Indefinite leave to enter/remain
This is the immigration status granted by the Home Office to those foreign nationals who qualify for
settlement or permanent residence in the United Kingdom. A person granted this status has no immigration
restrictions placed on the work they may carry out in the UK, and no time limit on their stay.

Immigration and Nationality Directorate (IND)

A former directorate within the Home Office which had responsibility for immigration and asylum issues.
This has now been replaced by the Border and Immigration Agency.

Immigration Officer
A civil servant with responsibility for enforcement of immigration controls, including the operation of border
controls at ports in the UK.

Immigration Status Document

A document which carries a UKRP endorsement where this cannot be placed in a national passport.

Leave
When a non-EEA national is permitted to stay in the UK, they are granted leave by the UK Government.

Leave to enter
When the Home Office grants permission for a non-EEA national to enter the UK, this is referred to as
‘leave to enter’.

Leave to remain
When leave is granted by the Home Office to a non-EEA national after that person has entered the UK, this
is referred to as ‘leave to remain’.

Limited leave to enter/remain

A form of leave granted to non-EEA nationals which permits them a limited period of stay in the UK. Some
nationals will be able to take employment as part of their limited leave, although immigration restrictions may
be imposed on the types of work they can do during their stay here. Where the leave has not expired, this is
sometimes referred to as ‘current’ or ‘subsisting’ leave.

National Insurance (NI) number

A National Insurance number is a personal number issued to monitor an individual’s National Insurance
contributions and credited contributions. It is also used as a reference number for individuals within the social
security system.

Refugee Status
Granted to those asylum seekers who are recognised by the Home Office in accordance with the criteria set
out in the 1951 United Nations Convention relating to the Status of Refugees.

Standard Acknowledgement Letter (SAL)

A document issued by the Home Office to asylum seekers upon application for asylum. The SAL document is
currently being replaced by the Application Registration Card.

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 United Kingdom Residence Permit (UKRP)
The United Kingdom Residence Permit (UKRP) is an endorsement which authorises an individual to stay in
the UK. It is attached either to an individual’s passport or to their Immigration Status Document.

Worker Registration Scheme

This is the scheme established by the Home Office to monitor the participation of A8 workers in the UK
labour market.

Work permits
Work permit arrangements allow employers based in the UK to employ people from countries outside the EEA.

80